Unlawful Detainer CCP 1161a Foreclosure Sale Ud Issues of Title General Equitable Considerations

Unlawful detainer, Code Of Civil Procedure Section 1161a foreclosure
sale unlawful detainers and issues of title; general equitable

considerations
Cheney raises the issue of the definition of directly relates to the

issue of possession, See Green v. Superior Court at FN17
California Practice Guide: Landlord-Tenant

Judge Terry B. Friedman, Judge David A. Garcia (Ret.), and Mark
Hagarty
Chapter 8. Unlawful Detainer Litigation: Pretrial Matters

D. Answer To Unlawful Detainer Complaint
**l. [8:351] Equitable defenses

(1) [8:352] Effect on trial
(2) [8:353] Application
(a) [8:354] Parties not in tenancy relationship
(b) [8:355] Trivial breach ("substantial compliance")
(c) [8:356] Landlord's fraud
(d) [8:359] Title in issue in related action
r. Compare--issues of title
(1) [8:386] Generally not cognizable defense
**(2) Exceptions
(a) [8:387] Quiet title action pending
**(b) [8:388] Section 1161a foreclosure/sale unlawful
detainers
5. Other Tenant Responses
a. [8:389] Challenging alleged "rental value"
b. [8:390] Contesting requisite relationship
l. [8:351] Equitable defenses: Generally, any defense on equitable

grounds is allowed. [See Union Oil Co. v. Chandler (1970) 4 CA3d
716, 722, 726, 84 CR 756, 760-761, 763 (holding, however, that
antitrust violation cannot be raised as equitable defense)]
(1) [8:352] Effect on trial: When equitable defenses are pleaded,
the court has the option of trying the equitable issues first.
If the equitable defenses resolve the case, this avoids the
need to impanel a jury (tenant has absolute right to jury
trial on legal issues, ¶ 9:75 ff.). (But see CCP § 592--court
may order equitable issues tried by jury.)
(2) [8:353] Application: The following illustrate potential
equitable defenses:
(a) [8:354] Parties not in tenancy relationship: Absence of
landlord-tenant relationship. [Manning v. Franklin (1889)
81 C 205, 207, 22 P 550, 551--P and D were parties to sale
of property; Pico v. Cuyas (1874) 48 C 639, 642-- P and D
were partners, not landlord and tenant]
(The existence of the landlord-tenant relationship is part
of the landlord's prima facie case and its absence,
therefore, will be in issue under a specific denial of the
relationship allegation in the complaint.)
c) [8:356] Landlord's fraud: The landlord acquired the right

to possession through fraud. [Asuncion v. Super.Ct. (W.C.
Fin'l, Inc.) (1980) 108 CA3d 141, 143, 166 CR 306, 308]
1) [8:357] A fraud defense is more likely to come up in
unlawful detainers based on foreclosure or sale under CCP
§ 1161a. [E.g., Asuncion v. Super.Ct. (W.C. Fin'l, Inc.),
supra, 108 CA3d at 144, 166 CR at 308-- affirmative
defense in UD brought after purchase that P fraudulently
obtained title from D]
2) [8:358] On the other hand, it is not a defense that the
landlord fraudulently induced the tenant to execute a
lease unless the tenant was in possession of the premises
at the time the lease was executed. [Kalmanovitz v. Rempp
(1952) 111 CA2d 242, 246-247, 244 P2d 457, 459-460--no
fraud defense since tenants not in possession when lease
executed; Knowles v. Robinson (1963) 60 C2d 620, 626, 36
CR 33, 37--fraud defense possible where tenant in lawful
possession when lease executed]
(d) [8:359] Title in issue in related action: Where the
landlord has put title in issue by bringing a quiet title
action against the tenant, the tenant may raise the
question of title in a subsequent unlawful detainer.
[Greenhut v. Wooden (1982) 129 CA3d 64, 69-70, 180 CR 786,
789-790]
(A title defense is also permitted in CCP § 1161a unlawful
detainers; see ¶ 8:388.)
r. Compare--issues of title
(1) [8:386] Generally not cognizable defense: Issues of title
ordinarily cannot be raised in unlawful detainers and, if
raised in the tenant's answer, are subject to motion to
strike. [High v. Cavanaugh (1962) 205 CA2d 495, 498- 499, 23
CR 121, 122-123]
(2) Exceptions
(a) [8:387] Quiet title action pending: If the landlord has
put title in issue through a pending quiet title action
against the tenant, the tenant may raise the landlord's
lack of title as an affirmative defense in the unlawful
detainer. The title defense in this case is tantamount to a
defense based on the absence of a landlord-tenant
relationship between the parties (or such other
relationship upon which a UD may be filed); ¶ 8:40 ff.
[Greenhut v. Wooden (1982) 129 CA3d 64, 69, 180 CR 786, 789;
CCP § 1161]
**(b) [8:388] Section 1161a foreclosure/sale unlawful
detainers: An eviction after foreclosure (or other) sale
under CCP § 1161a (¶ 7:256 ff.) requires the purchaser
seeking eviction to have "duly perfected" title. Thus, in §
1161a UDs, plaintiff's lack of title is a defense. [Vella
v. Hudgins (1977) 20 C3d 251, 255, 142 CR 414, 416; Evans
v. Super.Ct. (Robbins) (1977) 67 CA3d 162, 169, 136 CR 596,
600-601]
Since title is part of plaintiff's prima facie case, it is
in issue under a specific denial, assuming title is alleged
in the complaint; or, if title is not alleged, the defect
is properly raised by demurrer.
Green v. Superior Court, 10 Cal.3d 616, 517 P.2d 1168, 111 Cal.Rptr. 704 (Cal., Jan 15, 1974)
January 15, 1974.
SUMMARY
A landlord commenced an unlawful detainer action in small claims court, seeking possession of the
leased premises and back rent. Admitting nonpayment of rent, the tenant defended on the ground the
landlord had failed to maintain the premises in a habitable condition. The landlord was awarded
possession and a money judgment. After a trial de novo on the tenant's appeal, the superior court reached
the same result, holding that the tenant's right under Civ. Code, § 1941 et seq., to make repairs and deduct
the cost from the rent, constituted his exclusive remedy. The tenant's request for certification and transfer
of the case to the Court of Appeal was denied.
The Supreme Court ordered issuance of peremptory writ of mandate directing the superior court to
vacate its judgment and to proceed with trial of the unlawful detainer action in accordance with the views
expressed in the opinion. The court held that a warranty of habitability is implied by law in residential
leases in this state and that the breach of such a warranty may be raised as a defense in an unlawful
detainer action
(5) Landlord and Tenant § 283(1)--Unlawful Detainer--Defenses and Cross-demands.
A defense normally permitted because it arises out of the subject matter of the original suit is generally
excluded in an unlawful detainer action if such defense is extrinsic to the narrow issue of possession,
which the unlawful detainer procedure seeks speedily to resolve,**but a tenant is not prohibited from
interposing a defense which does directly relate to the issue of possession, and which, if established,
would result in the tenant's retention of the premises. *619
(5)The basic teaching of Knowles, Lakeside, and the entire line of cases these decisions reflect, [FN17] is
that a defense normally permitted because it "arises out of the subject matter" [webster’s new world law
dictionary subject matter: whatever is in dispute; the actual cause of the law suit; the issue about which a
right or obligation has been asserted or denied]of the original suit is generally excluded *633 in an
unlawful detainer action if such defense is extrinsic to the narrow issue of possession, which the unlawful
detainer procedure seeks speedily to resolve. [FN18] **Neither Knowles, Lakeside nor any other
California decision, however, prohibits a tenant from interposing a defense which does directly relate to
the issue of possession and which, if established, would result in the tenant's retention of the premises.
FN19 Although several Court of Appeal decisions have suggested that the Knowles doctrine
precludes the introduction of all affirmative defenses in unlawful detainer actions except for
"equitable" defenses (see, e.g., Union Oil Co. v. Chandler (1970) 4 Cal.App.3d 716, 721-722 [84
Cal.Rptr. 756]; Rydell v. Beverly Hills P. & P. Co. (1927) 88 Cal.App. 216, 219 [262 P. 818];
Knight v. Black (1912) 19 Cal.App. 518, 527- 528 [126 P. 512]), **this characterization is
inaccurate on two grounds. First, past cases have not permitted the interposition of any
conceivable equitable defense, **but have allowed only those defenses which, if established,
would preclude the landlord from recovering possession of the property. **Second, California
decisions have at the same time permitted the introduction of "legal" defenses whenever such
defenses, if proven, would have preserved possession in the tenant.
Two cases aptly illustrate the first proposition. In Smith v. Whyers (1923) 64 Cal.App. 193, 195 [221 P.
387], the court refused to permit a tenant to raise the "equitable defense" that the lease under which she
held possession had been obtained by fraud, because even if the tenant established the invalidity of the
lease, she would not have been entitled to retain possession but could only have rescinded and obtained
damages. **By contrast, in Johnson v. Chely (1872) 43 Cal. 299, 305, a tenant was permitted to defend an
unlawful detainer action on the ground that the landlord's lease was obtained by fraud, **for the tenant
had been in possession prior to the lease and thus by demonstrating its invalidity would have been entitled
to retain possession. (See, e.g., Schubert v. Lowe (1924) 193 Cal. 291, 295-296 [223 P. 550]; Rishwain v.
Smith (1947) 77 Cal.App.2d 524, 531-533 [175 P.2d 555]; Gray v. Maier & Zobelein Brewery (1906) 2
Cal.App. 653, 657-658 [84 P. 280].)
Moreover, the Johnson case also demonstrates that the rule permitting defenses that are relevant
to the issue of possession is not limited to "equitable" defenses, but applies equally to "legal"
defenses. In permitting the tenant to set up the defenses of fraud under the circumstances
discussed above, the Johnson court specifically noted that such defense "wherever set up, is of
legal and not of merely equitable cognizance ...." (Italics added.) (Johnson v. Chely (1872) 43
Cal. 299, 305.) Similarly, the court in Giraud v. Milovich (1938) 29 Cal.App.2d 543, 547-549 [85
P.2d 182], permitted a tenant in an unlawful detainer action to raise the legal defense of "partial
eviction" which excused the tenant's nonpayment of rent and precluded the landlord from
obtaining possession of the premises. (See also Skaggs v. Emerson (1875) 50 Cal. 3, 6; cf. Arnold
v. Krigbaum (1915) 169 Cal. 143, 146-147 [146 P. 423].) Indeed several of the early cases from
which the so-called "equitable defense" exception emanated permitted defenses which might
more appropriately be characterized as legal than equitable. (See, e.g., Knight v. Black (1912) 19
Cal.App. 518, 526 [126 P. 512]; Strom v. Union Oil Co. (1948) 88 Cal.App.2d 78, 81-85 [198
P.2d 347].)
Two of the more recent unlawful detainer cases, Abstract Investment Co. v. Hutchinson (1962)
204 Cal.App.2d 242 [22 Cal.Rptr. 309] and
FN17 See, e.g., Arnold v. Krigbaum (1915) 169 Cal. 143, 145 [146 P. 423]; Cheney v. Trauzettel
(1937) 9 Cal.2d 158, 159 [69 P.2d 832]; Knight v. Black (1912) 19 Cal.App. 518, 527-528 [126
P. 512]; D'Amico v. Riedel (1949) 95 Cal.App.2d 6, 8 [212 P.2d 52].
FN18 An exception to this rule has been recognized when the tenant has voluntarily surrendered
possession of the premises before the trial of the unlawful detainer action. (See, e.g., Servais v.
Klein (1931) 112 Cal.App. 26, 36 [296 P. 123]; Heller v. Melliday (1943) 60 Cal.App.2d 689,
697 [141 P.2d 447].) In such a case, the right to possession would no longer be at issue and thus
the need for a speedy procedure, underlying the rule, would evaporate. Schweiger v. Superior
Court (1970) 3 Cal.3d 507 [98 Cal.Rptr. 729, 476 P.2d 97], provide perhaps the clearest
indication that the determination of whether a defense may be raised in such a proceeding does
not turn on whether such defense is "equitable" or "legal" in nature, **but rather upon whether
the establishment of the defense will preclude the removal of the tenant from the premises. In
Abstract Investment the court permitted a tenant to raise the landlord's alleged racially
discriminatory motive as a defense in an unlawful detainer action. The court reasoned that if such
discrimination were established, constitutional principles would bar the state from giving
affirmative aid to the landlord's eviction efforts; hence, the proffered defense was directly
relevant to whether the tenant could retain possession of the premises. Although the court noted
the "equitable" considerations involved, the tenant's defense, in light of its constitutional basis,
could at least equally be characterized as "legal" in nature.
In Schweiger, following the lead of Abstract Investment, we upheld a tenant's defense to an

unlawful detainer action on the ground that the landlord's attempt to evict a tenant was in
retaliation for his exercise of his right to "repair and deduct" granted by Civil Code section 1941
et seq. Without specifically labelling this defense as "legal" or "equitable," our court recognized
that to prevent the emasculation of the "repair and deduct" remedy, we were compelled to permit
such a defense in an unlawful detainer action. (3 Cal.3d at pp. 513-517.)
Johnson v. Chely, 43 Cal. 299, 1872 WL 1160 (Cal. Apr Term 1872)
ACTION AGAINST TENANT FOR HOLDING OVER.
In an action of unlawful detainer, against a tenant for holding over, the mere fact that the defendant has been in the
quiet and peaceable possession of the premises for one year before the commencement of the suit, will not defeat the
action.
IDEM.
In such action the relation of landlord and tenant must be shown to exist, otherwise the plaintiff cannot recover, and
if that relation is shown to exist, the defendant must be permitted to prove, if he can, that he did not enter under the
lease, but, being already in possession, was induced to accept a lease from the plaintiff by fraudulent and false
representations that the plaintiff owned the property, when it belonged to another, and, if the tenant can show such
state of facts, he is not estopped by the lease.
IDEM.
The rule in ejectment, that if the defendant can show that he did not enter under the lease, but, being already in
possession, was induced by the plaintiff through false representations that he owned the premises, to accept the
lease, that **then this state of facts destroys the relation of landlord and tenant and removes the estoppel, is also the
rule in an action of unlawful detainer against a tenant for holding over.
The plaintiffs recovered judgment in the Court below, and the defendant appealed.
The other facts are stated in the opinion.
B. S. Brooks, for Appellant.
The County Court, under the Constitution, had no jurisdiction of the action. It was not intended that the summary
proceeding provided for in the Act should be a substitute for the action of ejectment. ( Owen v. Doty, 27 Cal. 502;
Hodgkins v. Jordan, 29 Cal. 577.)
The defendant had a right to show that the relations of landlord and tenant did not exist between him and the
plaintiff, because the action could only be maintained between those who hold that relation by express contract and
directly; and in order to show that, the proof which he offered was pertinent-- that is, to show that he did not enter
under plaintiff; that being in possession of the property he was induced by fraud and false representations to attorn to
the plaintiff and to recognize him as a landlord; but afterwards, finding out the falsity of these representations and
the fraud which had been perpetrated upon him, he repudiated the plaintiff and attorned to the true owner. (
Tewksbury v. Magraff, 33 Cal. 237; McDevitt v. Sullivan, 8 Cal. 592; Walls v. Preston, 28 Cal. 224; Connor v.
Jones, 28 Cal. 59; Henderson v. Allen, 23 Cal. 519; Wheelock v. Warshauer, 34 Cal. 265; Reay v. Cotter, 29 Cal.
168.)
In an action of forcible entry and detainer all matters of legal excuse, justification, or avoidance, can be given in
evidence under a general denial of the allegations of the complaint. ( Watson v. Whitney, 23 Cal. 375.)
*301 Edward J. Pringle, for Respondent.
If the latter part of section three thousand one hundred and thirty-eight (Hittell) refers to the whole Act, and not to
cases of force only, it means that the landlord must bring his suit before the expiration of one year from the denial of
his title, or from the last payment of rent; any other construction would defeat the main purposes of the remedy. The
last rent was paid on November fifteenth, and the suit was brought on September fourth, thereafter.
The facts which the defendant sets up to avoid the lease constitute an equitable defense, if any, and the County Court
has no jurisdiction. An equitable defense may be interposed to an action of ejectment, because under our system the
same Court has jurisdiction as well of the equitable remedy invoked by the defendant, as of the legal remedy
invoked by the plaintiff. When the defendant presents his equitable defense he becomes an actor, and his defense
must have all the essentials of a bill in equity. ( Lestrade v. Barth, 19 Cal. 671.) As such a bill could not be presented
by a plaintiff to the County Court, it follows necessarily that the defendant cannot make himself actor or plaintiff by
the presentation of such a defense. Such a defense involves the question of title.
In Reay v. Cotter, 29 Cal. 170, the Court said: “The Act in question was not intended to apply to any case where the
title to the land could be made a question, **but only to cases where, from the nature of the relation between the
parties, no such question could be made because prohibited by law.” * * * “In such case title is not, and cannot be
made, a question.”
In Mecham v. McKay, 37 Cal. 164, the Court says: “But a more valid objection, even than this, to the admissibility
of this testimony, may perhaps be found in the fact that it is an attempt to try title in an action for unlawful detainer.”
*302 What is the appellant's offer in this case, but an attempt to prove that the true title is in Le Roy and not in the
respondents?
By the Court, WALLACE, C. J.:
This is an action brought in the County Court of the City and County of San Francisco, under the provisions of the
Act of April 27th, 1862 (p. 652), to recover of the defendant the possession of certain tenements as a tenant holding
over after demand of rent due under a lease, and failure to pay such rent for the space of three days.
The complaint alleges that in 1867 the plaintiffs, Johnson, Lazarus, and Francis Brooks, as landlords, leased the
premises to the defendant, to hold from month to month, at the rent of thirty-five dollars per month, payable in
advance; that the defendant entered under said lease, and still occupies said premises; that on the 15th August, 1868,
three hundred and fifteen dollars was due for rent; that on August thirtieth thereafter demand was made for a
surrender of the possession, and that defendant refused to quit the possession, or to pay the rent due, etc.
The answer denies the making of the lease alleged, or any lease, or that the defendant went into possession
thereunder; denies that any rent is due from the defendant to the plaintiffs; alleges that the defendant was in adverse
possession in 1862, occupying the premises by himself and tenants for many years; that while so in possession the
plaintiffs falsely represented to him that they were the owners in fee of the premises, and had been so adjudged to be
by the Supreme Court of the State, and threatened to bring a suit against him unless he would attorn to them, etc.
The answer further alleges that the defendant believed these statements of the plaintiffs, and, being induced and
deceived thereby, he agreed to become their tenant, and under the influence of such *303 belief he did for some time
thereafter pay rent to the plaintiffs; **but in December, 1867, one Le Roy, who was the true owner of the premises,
brought an action against the defendant for their recovery, and the defendant then ascertaining that the representation
of the plaintiffs in that respect was false, and that Le Roy was the owner in fee of the premises, renounced and
disavowed his tenancy to the plaintiffs, and became and still is the tenant of Le Roy.
At the trial the plaintiffs put in evidence the following agreement:
“This instrument witnesseth, That I, Louis Chely, have this day hired of George J. Brooks & Co., of the City of San
Francisco, all that certain lot of land in said city situate on the westerly side of Battery street, and now known as
number eight hundred and fifteen and eight hundred and thirteen Battery street, being thirty-five feet in width, for
the term of two years from date, at the monthly rent of forty dollars per month, payable in gold coin every month in
advance. And I, Louis Chely, do also agree to pay all assessments levied on said lot during said term, for the keeping
of the street and crossings in repair.
In witness whereof I have hereunto set my hand and seal, at the City of San Francisco, this 15th day of June, A. D.
1865.
LOUIS CHELY.
In presence of G. W. H. Faulkner.”
And proved in connection therewith, that at the time it was signed by the defendant the firm of George J. Brooks &
Co. was composed of Francis W. Brooks only, and that at the expiration of the term of two years mentioned in that
instrument, the defendant not desiring “to take another written lease,” had agreed with the agent of the plaintiffs that
he would continue to occupy the premises at the rent of thirty-five dollars per month, and that under this
arrangement*304 he had paid the rent up to November 1867, making his last payment on that day.
The mere fact of the defendant having been in the quiet and peaceable possession for one year before the
commencement of the suit would not defeat the action in this case. Such a possession would defeat an action
counting upon a detainer by actual force, under section ten of the Act--the action here, however, is for an unlawful
detainer--occurring by reason of occupation continued, with non-payment of rent due, though the rent was
demanded within one year after it so became due--the proceeding being under sections three and four of the statute.
The last ground of the motion was that the County Court had no jurisdiction of the action, but that the District Court
alone has cognizance of such a case. This point, however, is answered by the cases of Caulfield v. Stevens, 28 Cal.
118; Brummagim v. Spencer, 29 Cal. 661, and Mecham v. McKay, 37 Cal. 154.
I am, therefore, of opinion that the motion for a nonsuit was properly denied.
**Second--The Court below refused to permit the defendant to prove that he was already in possession of the
premises*305 when he agreed to become the tenant of the plaintiffs, and that they induced him to assume the
relation of tenant to them by their fraudulent misrepresentation that they were the owners of the premises.
In this, I think, the Court was in error. In this action the relation of landlord and tenant must be shown to exist,
otherwise the plaintiff cannot recover, and if the facts alleged by the defendant in these respects be established, the
tenancy set up by the plaintiffs would be disproven.
**In an action of ejectment the tenant cannot be permitted to dispute the title of his landlord. That is the general rule.
**If, however, the defendant in ejectment be able to show that he did not enter under the lease, but that being
already in possession he was induced to accept a lease from the plaintiff, through deception and imposition practised
upon him by the latter, then he is not estopped to dispute the title of the plaintiff. Such circumstances appearing
destroy the relation of landlord and tenant, and so remove the estoppel, which must otherwise conclude the
defendant by reason of such a relation existing, and the plaintiff is thus thrown back to establish his title in the
ordinary way, if he can. He cannot turn the defendant out by mere force of such a lease.
I think that the same result must follow, so far as the defendant is concerned, in an action of unlawful detainer, in
which a lease relied upon to establish the relation of landlord and tenant is shown to have been obtained under such
circumstances as would not have estopped the tenant from disputing the title of the landlord in a Court in which the
title could be tried. The defense, wherever set up, is of legal and not of merely equitable cognizance; and it is
unreasonable that one who might rely upon that defense, if sued for the possession in the District Court, is not to be
*306 heard to do so in the County Court, and is thus to be turned out of possession because his adversary has
summoned him to one Court of law instead of to another Court of law.
I am of opinion, therefore, that if the defendant prove his defense in this respect it must defeat the action in the
County Court, where a recovery can only be had by establishing the relation of landlord and tenant to be existing
between the parties.
**Judgment reversed, and cause remanded for a new trial.
Abstract Inv. Co. v. Hutchinson, 204 Cal.App.2d 242, 248-249, 22 Cal.Rptr. 309 (Cal.App. 2 Dist.,May 29,
1962)
[5] Although defendant bases his defense upon constitutional propositions and statutes seeking to insure equal
protection under the law, such defense nevertheless has its foundation in equitable principles.
[6][7] The purpose of the general rule, that neither a counterclaim nor a cross complaint is admissible in an action of
unlawful detainer, is to prevent tenants who have violated the covenants of their leases from frustrating the ordinary
and summary remedy provided by statute for the restitution of the premises. ( Smith v. Whyers, 64 Cal.App. 193,
221 P. 387.) Also, the *249 broad question of title cannot be raised and litigated by cross complaint or affirmative
defense in an unlawful detainer action since the sole issue before the court is the right to possession. ( Cheney v.
Trauzettel, 9 Cal.2d 158, 159, 69 P.2d 832.)
However, as the court stated in McCue v. Bradbury, 149 Cal. 108, at 113, 84 P. 993, at 995 ‘* * * equity will refuse
to enforce a forfeiture at the instance of one who has obtained the strictly legal right to it by fraud, deceit, or any
other form of oppressive practice; and, upon the other hand, will relieve the innocent when such a forfeiture so
secured is sought to be enforced.’
**314 ‘Equitable principles apply in this state also where a forfeiture is sought in an action in unlawful detainer.’ (
Strom v. Union Oil Co., 88 Cal.App.2d 78, 83, 198 P.2d 347, 350.) The court in Knight v. Black, 19 Cal.App. 518,
525-526, 126 P. 512, 515, speaking of the remedy of unlawful detainer, said, ‘* * * although the remedy provided
by law for the breach of such a condition is summary in principle and process, nevertheless the very nature of the
action, involving, as it does, a forfeiture, appeals to the equity side of the court, and in turn requires ‘a full
examination of all of the equities involved to the end that exact justice be done.’ [Citation.]'
McCue v. Bradbury, 149 Cal. 108, 84 P. 993 (Cal. Mar 31, 1906)
Action by J. S. McCue and wife against William B. Bradbury and others. From a judgment for plaintiffs, defendants
appeal. Affirmed.
West Headnotes
Mortgages 266 301
266 Mortgages
266VII Payment or Performance of Condition, Release, and Satisfaction
266k300 Tender
266k301 k. Before Default. Most Cited Cases
Before the maturity of a debt secured by a deed of trust, the debtor informed the creditor of his readiness to pay the
debt on the day before its maturity at a bank designated. The creditor made no objection to going to the bank for his
money. The debtor was at the bank that day, ready to pay the debt, but the creditor did not appear. The following
day was Sunday, and the next day the debtor obtained from the bank a certificate of deposit payable to the creditor,
who was on that day informed thereof. He made no objection to the form or conditions of the tender. Held, that
equity would restrain a sale of the premises and would compel the creditor to accept in satisfaction of his demand
the amount due and payable on the day the certificate of deposit was procured; Civ.Code, § 1511, excusing
performance if the same is prevented by the act of the creditor.
**993 *108 T.C.Kierulff, E. C. Chapman, and R. M. F. Soto, for appellants.
H. V. Morehouse and J. E. Alexander, for respondents.
HENSHAW, J.
Plaintiffs had executed to trustees a deed of trust in the usual form as security for moneys advanced by defendant
William B. Bradbury. The trustees, having declared a default and forfeiture under the terms of the trust, were
proceeding to sell the lands, when plaintiffs instituted this action to restrain them, and to compel the defendant
Bradbury to accept in extinguishment of their debt to him *109 the moneys due and evidenced by certificates of
deposit issued by a bank in San Rafael, Marin county, in which county the land is situated. The history of the
transactions and dealings of the parties may best be told in the language of the findings, which findings derive ample
support from the evidence. It is first found that plaintiffs were the owners of the property, and that they had executed
their promissory note and the trust deed; that they paid the interest on the promissory note regularly according to its
terms; that the principal sum of it and the last installment of interest became due and payable on the 22d day of
October, 1904, and if not paid on that date the trustees had full power to advertise and sell the land upon the demand
of William B. Bradbury, for the payment of the promissory note and the interest, costs, and expenses of sale and
$200 attorney's fee, as provided in the trust deed.
The findings then proceed as follows: ‘That on or about the 19th day of October, 1903, at Corte Madera, in said
Marin county, the plaintiff met the said William B. Bradbury and requested him to permit the said trust deed to be
continued at a less rate of interest, but the said William B. Bradbury would not consent so to do, and thereupon the
said plaintiff J. S. McCue informed the said William B. Bradbury that he was ready, able and willing to pay him said
principal and interest and would pay the same to him on the 22d day of October, 1904, at the Marin County Bank at
San Rafael, in said Marin county, upon a cancellation of said trust deed. That said Bradbury did not then and there,
or at any other time, or at all, make or express any objections to going to San Rafael to get said money, but in reply
said, ‘All right, but it is not due until the 23d.’ That on, and for several hours during said 22d day of October, 1904,
said McCue was in San Rafael, Marin county, and was then and there ready, able and willing to pay said Bradbury
the full amount of said principal, and interest then due and owing to said Bradbury upon said note, but that said
Bradbury did not appear at said bank, or at any other place in San Rafael, on said 22d day of October, 1904. That the
23d day of October, 1904, was Sunday. That thereafter, to wit, on the 24th day of October, 1904, the plaintiffs
herein procured from and caused to be issued by the Marin County *110 Bank, a bank of good repute, two
certificates of deposit, one in the sum of three thousand two hundred and forty-three and 56/100 ($3,243.56) dollars,
payable to William B. Bradbury, the defendant herein or his order, and the other in the sum of fifty three and 44/100
($53.44) dollars, payable to W. P. Taylor, or his order. That said W. P. Taylor was and now is the tax collector of
said county of Marin, and the amount certified in said last-mentioned certificate of de posit, to wit, the sum of fifty-
three and 44/100 ($53.44) dollars, was the amount of taxes levied and assessed on the 1st Monday of March, 1904,
upon and against said trust deed, all of which was then due, owing and unpaid. That thereafter, to wit, on the said
24th day of October, 1905, Kittie G. McCue, one of the plaintiffs herein, prepared and signed, with the knowledge,
consent and concurrence of J. S. McCue, the other of said plaintiffs, and caused to be served upon said Bradbury at
his home in Corte Madera, in said county, an offer in writing, addressed to said Bradbury, to pay to said Bradbury
the full amount then due to said William B. Bradbury upon said note and trust deed upon condition that said
Bradbury make, execute and deliver to plaintiffs a reconveyance in due form of the land and premises theretofore
conveyed in trust to secure the payment of said note. That said offer of payment was in the words and figures
following, to wit: ‘To W. B. Bradbury. You will please take notice that the full amount due on my note heretofore
executed to you and secured by trust deed has been deposited’ at the Marin County Bank at San Rafael, California,
payable ‘to your order. You will please call at the office of E. B. Martinelli and deliver to **994 him a reconveyance
in due form of the premises heretofore conveyed by me in trust to secure the payment of the note aforementioned,
and the money deposited to your order will be paid over to you. Respectfully yours, Kittie G. McCue.’ That all this
was done by the plaintiffs herein in good faith and with the intent and purpose of paying the said William B.
Bradbury in full the amount then due and owing him, and that the said plaintiffs were then and there ready, willing
and able to pay to said William B. Bradbury the full amount then due and owing to him under said note and trust
deed. That said Bradbury received said written offer of payment on said 24th day of October, 1904, at his *111
home in Corte Madera, at or about the hour of 6 o'clock p. m. of that day. That said William B. Bradbury did not
then, or at any other time, or at all, make any objections to the form, terms, or conditions of said offer of payment.
That said William B. Bradbury was personally acquainted with said E. B. Martinelli, and that said William B.
Bradbury was in San Rafael on October 25, 1904, and that he did not then, or at any other time, or at all, accept said
offer of payment or signify a willingness to make a reconveyance to the plaintiffs upon payment of the full amount
due and owing to him of the property described in said trust deed, as required and conditioned by said offer of
payment and the terms and conditions of said trust deed. That on the said 24th day of October, 1904, the said
William B. Bradbury demanded of and directed the said Mary M. Bradbury and John F. Allen, as trustees named in
said trust deed, to advertise and sell said lands and premises, and thereupon and at the request and direction of said
William B. Bradbury a notice of sale of said lands and premises under and by virtue of the terms and conditions of
said trust deed, was prepared, and by said William B. Bradbury, in person, on the 27th day of October, 1904, and not
before, given for publication to the ‘Recorder-Enterprise,’ a weekly newspaper of limited circulation printed and
published at the town of Mill Valley, in Marin county. That said Recorder-Enterprise is published at a place away
from said lands and has no general circulation throughout said Marin county or at Corte Madera, where said lands
and premises are situated. That thereafter, to wit, on the 29th day of October, 1904, said notice of sale appeared and
was printed and published in said Recorder-Enterprise, and the sale of said land and premises was noticed and
specified therein for the 19th day of November, 1904, at the hour of 12 m. of that day in front of the town hall in the
town of Mill Valley. That the said sale was thereafter postponed to the 26th day of November, 1904, at 12 m. of that
day. That said William B. Bradbury had ample and sufficient time after receiving said offer of payment, and before
he personally gave said notice of sale to said newspaper for publication, to withdraw his demand upon said trustees
to sell said lands and premises, without cost or expense to himself or plaintiffs. That in attempting to make said sale,
as aforesaid, the said William *112 B. Bradbury was not acting in good faith, but sought to take advantage of said
plaintiffs and to put them to large and unnecessary costs and expenses. That the said lands and premises are of a
value far in excess of the amount due and owing on said note by the said plaintiffs, all of which the said William B.
Bradbury then and there well knew, and the said lands and premises were ample security for the payment of said
note and interest, and upon a sale thereof, properly made and advertised, would bring a sum of money far in excess
of the amount of said indebtedness and the costs and expenses and attorneys fees attending the sale thereof, all of
which said William B. Bradbury well knew. That the sale of said lands and premises would cast a cloud upon the
title of said plaintiffs to said lands and cause plaintiffs unnecessary expense and litigation, and prevent said plaintiffs
from the sale thereof or using the same as security to negotiate a loan or loans upon, all of which said defendant
William B. Bradbury well knew, and their value thereof consists in the plaintiffs being able to sell them in lots and
would be greatly depreciated by any sale thereof under said notice of sale. That plaintiffs have no plain or speedy or
adequate remedy at law, and that the injury which they would sustain by such sale cannot be adequately
compensated in damages, and that the sale thereof is wholly unwarranted and unnecessary, all of which defendant
William B. Bradbury well knew; and he, the said Bradbury, knew that by complying with said written notice served
upon him, and giving the release of said trust deed, he would be paid in full, but, with the fraudulent intent and
purpose of annoying and putting said plaintiffs to expense and putting said property in condition to prevent its being
used as security for the loan of money, he caused said trustees to advertise said land and premises for sale.'
Appellants' principal contention upon appeal is that the acts of the McCues looking to the payment of the obligation
to Bradbury were entirely insufficient as a legal tender of payment, and that this being so, and plaintiffs being in
default under the terms of the trust, Bradbury's trustees were justified in proceeding with the sale of the property to
extinguish the McCues' obligation. But in this appellants mistake the gist of the action. The action is not based upon
the assumption *113 that the tender actually made was a full and complete legal tender, but upon the contention that
the acts of the defendant William B. Bradbury, in assenting to the proposed mode of payment, in failing to make
objection in any form to the tender as made, and in doing all this in bad faith, to lull the plaintiffs into a fancied
security, with the end in view of declaring a forfeiture and forcing a sale of **995 their property-that these acts and
this conduct are sufficient to induce a court of equity to relieve against the forfeiture, and to compel defendant
Bradbury to accept, in full satisfaction of his demand, the amount due and payable upon the 24th day of October,
which amount the plaintiffs then and ever since have stood ready, willing, and able to pay. **It is based upon the
equitable principle, often invoked and as often upheld, that equity will refuse to enforce a forfeiture at the instance
of one who has obtained the strictly legal right to it by fraud, deceit, or any other form of oppressive practice; and,
upon the other hand, will relieve the innocent when such a forfeiture so secured is sought to be enforced. De Groot
v. McCotter, 19 N. J. Eq. 531; Adams v. Rutherford, 13 Or. 78, 8 Pac. 896; Broderick v. Smith, 26 Barb. (N. Y.)
539; Noyes v. Clark, 7 Paige (N. Y.) 179, 32 Am. Dec. 620; Moore v. Sargent (Ind. Sup.) 14 N. E. 466; Wilcox v.
Allen, 36 Mich. 160; Bennett v. Stevenson, 53 N. Y. 508. All of this is in consonance with the language and spirit of
section 1511 of our Civil Code, which declares that want of performance of an obligation, or any delay therein, is
excused, when such performance is prevented or delayed by the act of the creditor. The findings of the court go both
to the good faith, the willingness, and the ability of the plaintiffs to pay, and equally to the bad faith of the defendant
William B. Bradbury in seeking to avoid the payment. The judgment which the court rendered restores to Bradbury
everything of value with which he parted, and that with interest, and, upon the other hand, saves to the plaintiffs the
property which is legally and justly theirs.
The judgment appealed from is therefore affirmed.
Adler v. Elphick, 184 Cal.App.3d 642, 645, 229 Cal.Rptr. 254 (Cal.App. 1 Dist. Aug 20, 1986)
Purchasers of residential property brought unlawful detainer action against tenant. The Municipal Court, Berkeley-
Albany Judicial District, Anthony Bellante, J., entered judgment on jury verdict that purchasers were entitled to
possession and damages, and tenant appealed. The Appellate Department, Alameda County Superior Court,
reversed, and certified the matter, which the Court of Appeal ordered transferred to itself. The Court of Appeal,
Sabraw, J., held that: (1) “community apartment project” which arises when undivided interest in land is coupled
with right of exclusive occupancy of any apartment located thereon, could not be created informally through oral or
written lease between cotenants, or by implication from their actions, but rather, right to exclusive occupancy of
particular unit had to be specified on deed itself for “community apartment project” to be created; (2) refusal to
submit tenant's claim that purchase of residential property had created “community apartment project” to jury as
affirmative defense was proper; and (3) damages for wrongful possession did not need to be limited to controlled
rent level required by municipal rent control ordinance for subject property.
Affirmed.
[1] Forcible Entry and Detainer 179 25(1)
179 Forcible Entry and Detainer

179I Civil Liability
179k22 Pleading
179k25 Plea or Answer and Subsequent Pleadings
179k25(1) k. Necessity in general. Most Cited Cases
**Affirmative defenses may be asserted in unlawful detainer actions if they go to issue of title or possession of the
subject property.
“[1] Affirmative defenses may be asserted in unlawful detainer actions if they go to the issue of title ( Mortgage
Guaranty Co. v. Smith (1935) 9 Cal.App.2d 618, 619, 50 P.2d 835) or possession of the subject property. ( Green v.
Superior Court (1974) 10 Cal.3d 616, 633, fn. 19, 111 Cal.Rptr. 704, 517 P.2d 1168.) No reported California
decision prohibits a tenant *646 from interposing a defense which, if established, would result in the tenant retaining
possession of the premises.”
Mortgage Guarantee Co. v. Smith, 9 Cal.App.2d 618, 50 P.2d 835 (Cal.App. 1 Dist. Nov 01, 1935)
(1) Preliminarily the appellants argue that the action is not in unlawful detainer but is one to try title. The question is
not a new one. In Nineteenth Realty Co. v. Diggs, 134 Cal. App. 278, 288 [25 Pac. (2d) 522], and Hewitt v. Justice's
Court, 131 Cal. App. 439, 443 [21 Pac. (2d) 641], we held that in actions brought under section 1161a of the Code
of Civil Procedure the question of title must be tried when controverted as a necessary element of the remedy of
unlawful detainer. Here the respondent is suing under the authority of the third subdivision of the section-“Where
the property has been duly sold ... under a power of sale contained in a deed of trust ...”; appellants answered
attacking the validity of the sale; hence the case comes squarely within the rule cited.
**Appellants interposed a demurrer to the complaint, both general and special. The general grounds have heretofore
been considered; the special grounds need not be stated. (6) When a defendant does not stand on his demurrer, but
elects to answer and go to trial on the merits, the overruling of his demurrer will not support a reversal of the
judgment unless the defendant shows he was prejudiced by the order. (2 Cal. Jur., pp. 1012 et seq.; Nittler v.
Continental Cas. Co., 94 Cal. App. 498, 506 [271 Pac. 555,272 Pac. 309]; Harris v. Seidell, 1 Cal. App. (2d) 410,
414 [36 Pac. (2d) 1104].)
Nineteenth Realty Co. v. Diggs, 134 Cal.App. 278, 25 P.2d 522 (Cal.App. 1 Dist. Sep 25, 1933)
(10) ID.--POSSESSION--REMEDIES--ISSUES--TITLE.
--Under section 1161a of the Code of Civil Procedure, which was added to the code in 1929, an action in unlawful
detainer by the purchaser at the trustee's sale under a deed of trust is a proper proceeding to remove persons from the
demised premises; and, the remedy *281 being purely statutory, if the determination of the question of title to realty
becomes necessary, the legislature had the right to provide for the trial of that issue in such a proceeding.
The plaintiff sued in unlawful detainer as purchaser at a sale under a trust deed to recover possession of certain
portions of real property held by the defendants. The cause was tried by the court and judgment was entered for the
plaintiff for possession and damages. Four of the defendants have appealed upon the judgment-roll and a bill of
exceptions.
[10] Appellants contend that this is not a proper proceeding in unlawful detainer because it requires a trial of
questions of title. The proceeding was brought under the authority of section 1161a of the Code of Civil Procedure.
This section was added to the code in 1929. Subdivision 3 permits the action "where the property has been duly sold
in accordance with section 2924 of the Civil Code, under a power of sale contained in a deed of trust ... and the title
under the sale has been duly perfected". **The section is a legislative recognition of the departure from the early
common-law rule of unlawful detainer which limited summary proceedings thereunder to the strict relation of
landlord and tenant. An accepted doctrine in the operation of that rule was that a tenant was estopped from denying
the title of his landlord and hence that the question of title was not triable in such a proceeding. As the right to sue
was extended to the successor in interest of the landlord (Plummer v. Agoure, 20 Cal. App. 319 [128 Pac. 1014]), the
courts recognized the necessity of permitting the plaintiff to prove that he had acquired the landlord's title. This
subject was before us recently in Hewitt v. Justice's Court of Brooklyn Township, 131 Cal. App. 439 [21 Pac. (2d)
641], a case involving the jurisdiction of a justice's court to entertain a proceeding under the third subdivision of
section 1161a. The point was there made that the title to real property became involved whenever the plaintiff
started to prove that "the title under the sale has been duly perfected". In this connection this court said (p. 509), "In
other jurisdictions the right to maintain an unlawful detainer action has long been given to a purchaser under a
mortgage or deed of trust against the mortgagor or maker *289 of the deed of trust, despite the fact that the
purchaser must prove his acquisition of the title by the purchase. (Gage v. Sanborn, 106 Mich. 269 [64 N. W. 32];
Peters v. Balke, 170 I11. 304 [48 N. E. 1012].) It is clear, of course, that questions of title cannot generally be
litigated in an unlawful detainer action. But to the limited extent of proving deraignment of title in the manner
expressly provided for in the unlawful detainer statutes themselves the question of title not only may, but must, be
tried in such actions if the provisions of the statutes extending the remedy beyond the cases where the conventional
relation of landlord and tenant exists are not to be judicially nullified." (And see American Nat. Bank v. Johnson,
124 Cal. App. (Supp.) 783 [11 Pac. (2d) 916], and Berkeley Guar. B. & L. Assn. v. Cunnyngham, 218 Cal. 714 [24
Pac. (2d) 782].)
In the instant case there is no constitutional nor jurisdictional question involved. This remedy is purely statutory
and, if the determination of the question of title to realty becomes necessary, there is no reason why the legislature
could not provide for the trial of that issue in a proceeding of this character. To what extent the inquiries into the title
may run we need not decide. It is sufficient to say that if, in the proof of a "perfected" title as purchaser under a deed
of trust the validity of the deed or of the sale under it are put in issue by defendants' denials, the plaintiff cannot be
denied the right to complete his proof unless the courts are prepared to nullify the remedy granted by the code
section.
The judgment is affirmed.
Kessler v. Bridge, 161 Cal.App.2d Supp. 837, 327 P.2d 241

(Cal.App.Super.,Jun 11, 1958)
Good case. Utilize.
Action for removal of vendor from premises and for an award of damages
for withholding possession. From adverse judgment of the Municipal
Court of the Citrus Judicial District, William M. Martin, J., the
defendant appealed. The Superior Court, Appellate Department, David,
J., held that equitable defenses that there was fraud in inducement
for relinquishment of property, that delivery of deed to plaintiff was
in violation of terms and conditions of escrow, that there was an
unauthorized unilateral change in escrow instructions by plaintiff to
effect delivery of deed, that there was a failure of consideration,
that there was a cancellation of escrow and withdrawal of defendant's
consent to the transfer, and that transaction was rescinded, were
permissible and should have been considered.
Reversed and remanded.

179k29 Evidence
179k29(4) k. Weight and Sufficiency. Most Cited Cases
Under statute providing that where a person holds over and continues
in possession of real property after a three-day written notice to
quit may be removed from property when property has been duly sold by
him or a person under whom he claims and the title under sale has been
duly perfected, a plaintiff, to prevail, must prove affirmatively that
property was duly sold and that title under sale had been duly
perfected. West's Ann.Code Civ.Proc. § 1161a, subd. 4.
179k6 Nature and Form of Remedy
179k6(2) k. Trial of Title and Right of Possession.

Most Cited Cases
Under statute authorizing removal of a person who holds over and

continues in possession of real property after a three-day written
notice to quit the same when the property has been duly sold by him
and title under the sale has been duly perfected, title is an issue in
a proceeding for removal. West's Ann.Code Civ.Proc. § 1161a, subd. 4.
179k12 Defenses
179k12(1) k. In General. Most Cited Cases
In proceeding for removal of vendor from premises and for an award of

damages for withholding possession, equitable defenses that there was
fraud in inducement for relinquishment of property, that delivery of
deed to plaintiff was in violation of terms and conditions of escrow,
that there was an unauthorized unilateral change in escrow
instructions by plaintiff to effect delivery of deed, that there was a
failure of consideration, that there had been a cancellation of escrow
and withdrawal of defendant's consent to the transfer, and that
transaction was rescinded, were permissible and should have been
considered. West's Ann.Code Civ.Proc. § 1161a, subd. 4.
[6] Landlord and Tenant 233 290(1)
233 Landlord and Tenant
233IX Re-Entry and Recovery of Possession by Landlord
233k287 Actions for Unlawful Detainer
233k290 Right of Action and Defenses
233k290(1) k. Existence of Relation of Landlord

and Tenant. Most Cited Cases
Where landlord-tenant relationship is shown to exist between plaintiff

and defendant but the real issue is title and not possession, unlawful
detainer will not lie.
179k29 Evidence
179k29(2) k. Admissibility in General. Most Cited

Cases
It is competent to show in an unlawful detainer proceedings that

relationship is not that of ordinary landlord and tenant, but instead
is a sale of an interest in the property. West's Ann.Code Civ.Proc. §
1161a, subd. 4.
[9] Forcible Entry and Detainer 179 8
179k8 k. Title to Support Action. Most Cited Cases
Under statute providing for removal of person who continues in

possession of real property where property has been sold by him or a
person under whom he claims and title under sale has been duly
perfected, title is duly perfected when all steps have been taken to
make it perfect, and if there is want of performance or want of true
consent the title cannot be said to be perfected. West's Ann.Code
Civ.Proc. § 1161a, subd. 4.
[1][2] Plaintiff secured judgment against defendant vendor of certain

real property, for removal of the vendor from the premises and an
award of damages for withholding possession. The proceeding was based
on California Code of Civil Procedure sec. 1161a, subparagraph 4. To
prevail, a plaintiff must prove affirmatively that the property was
‘duly sold’ and that ‘the title under the sale has been duly
perfected.’ Contrary to the rule applying to unlawful detainer where
the landlord-tenant relationship is involved, title thus becomes an
issue. Kelliher v. Kelliher, 1950, 101 Cal.App.2d 226, 232, 225 P.2d
554.
[3] Based upon decisions pertaining to landlord-tenant relationships,

the trial court concluded that equitable defenses were not permitted,
and refused to consider defendant's defenses. Under C.C.P. sec. 1161a,
subparagraph 4, such defenses are proper, and the judgment must be
reversed.
Summarized, defendant's defenses are, substantially, **(1) fraud in

the inducement for the relinquishment of the property; (2) delivery of
the deed to plaintiff in violation of the terms and conditions of the
escrow; (3) unauthorized unilateral change in escrow instructions by
plaintiff to effect the *839 delivery of the deed; (4) failure of
consideration; (5) cancellation of the escrow and hence withdrawal of
the defendant's consent to the transfer before made; (6) rescission of
the transaction, effected before the institution of this suit.
In a case such as this it is essential that such issues be litigated,

for otherwise a judgment in the unlawful detainer suit is res judicata
as to them. **243Bliss v. Security First National Bank, 1947, 81
Cal.App.2d 50, 58, 183 P.2d 312; Freeze v. Salot, 1954, 122 Cal.App.2d
561, 565, 266 P.2d 140, hearing denied, Supreme Court.
If grounds for rescission existed, and proper notice of rescission

was given, then plaintiff at the time of institution of this suit had
no title, and the ‘sale’ after rescission is nonexistent, and may be
declared so. Civil Code secs. 1688, 1689; cf. Knight v. Black, 1912,
19 Cal.App. 518, 126 P. 512, equitable defenses permitted; Freeze v.
Salot, supra, 1954, 122 Cal.App.2d 561, 564, 266 P.2d 140, defenses
against sale permitted.
[4][5][6][7] The division of the Code of Civil Procedure (Part 3,
Title 3, Chapter 4) in which sec. 1161a(4) is found is denominated as
‘Summary Proceedings for Obtaining Possession of Real Property in
Certain Cases', and prior to 1929, concerned forcible entries and
detainers, and holding over by tenants beyond the terms of their
tenancy. The doctrine in case of the landlord-tenant relationship is
said to be that title will not be litigated in unlawful detainer
proceedings. It has been often said that to do so would deprive the
remedy of its summary character.
**But underlying such doctrine is the basic principle that a tenant

is estopped to deny the title of his landlord. Reay v. Cotter, 1865,
29 Cal. 168, 170; Johnson v. Chely, 1872, 43 Cal. 299, 305; Francis v.
West Virginia Oil Co., 1917, 174 Cal. 168, 170, 162 P. 394. **Where
the landlord-tenant relationship is shown to exist, title is not
litigated; **but if it is shown that the real issue is not possession,
but title, then unlawful detainer is held not to lie. **Reay v.
Cotter, supra. It is erroneous to say that title is never in issue,
for it is permissible to litigate it in connection with the existence
of the landlord-tenant relationship ( Steinback v. Krone, 1868, 36
Cal. 303; Reay v. Cotter, supra, 29 Cal. 168, 171). If the
circumstances involve such fraud as the tenant could assert against
the lease itself to invalidate it, this may be urged in an unlawful
detainer proceeding ( Johnson v. Chely, supra, 43 Cal. 299, 305). It
is competent to show that the relationship*840 is not that of ordinary
landlord and tenant, but instead is a sale of an interest in the
property. Manning v. Franklin, 1889, 81 Cal. 205, 22 P. 550, or
involves a partnership ( Pico v. Cuyas, 1874, 48 Cal. 639; Henderson
v. Allen, 1863, 23 Cal. 519, 521).
[8] In Francis v. West Virginia Oil Co., supra, 1917, 174 Cal. 168,
162 P. 394, it was held that a defaulting vendee in possession of real
property was not a tenant in any sense, so as to permit the employment
of C.C.P. sec. 1161 applying to unlawful detainer; and that an action
to eject such a person was not proper in unlawful detainer, in that he
was entitled to show title undergirding his possession, and to present
his equities and defenses. Specifically, it was held that default in
the terms of an agreement of purchase of realty did not make the
vendee a tenant of the vendor. 174 Cal. at page 171, 162 P. at page
395. (Accord: Mertens v. Keene, 1926, 77 Cal.App. 786, 247 P. 543.)
Thereafter, in 1929, section 1161a was added to the Code of Civil
Procedure to provide for removal of persons who continued in
possession of real property following a sale if ‘the title under the
sale has been duly perfected,’ in those instances (1) where a sale
results from an execution against the possessor, or **(2) the
foreclosure of a mortgage executed by the possessor, or **(3)
foreclosure under the terms of a deed of trust. American Nat. Bank v.
Johnson, 1932, 124 Cal.App.Supp. 783, 786, 11 P.2d 916, recognized
that C.C.P. sec. 1161a applies to situations where ‘strictly speaking’
there is no landlord-tenant relationship. Tenancy is not a necessary
incident to a sale and a three-day notice to deliver up possession
does not create a tenancy. C.C.P. sec. 1161a covers other instances
where dispossession by legal procedures is preferred to self-help. No
doctrine of estoppel is involved, comparable to that between the
landlord and tenant. Thus, upon a purported foreclosure **244 sale
under a trust deed, it is competent to assert in an action under
C.C.P. sec. 1161a (3) that the trust deed was not in default, even
though the finding to such effect depends in part upon equitable
estoppel of the beneficiary ( Altman v. McCollum, 1951, 107 Cal.App.2d
Supp. 847, 236 P.2d 914); and the validity of the sale and of the
trustee's deed was held to be so directly in issue in unlawful
detainer that the judgment therein was res judicata ( Seidell v.
Anglo-California Trust Co., 1942, 55 Cal.App.2d 913, 132 P.2d 12) and
that case is authority that lack of consideration for a note in
question *841 was a legal issue to be determined in the unlawful
detainer action (in 55 Cal.App.2d at page 922, 132 P.2d at page 16).
Although there was a strong dissent, based in part upon Cheney v.
Trauzettel, 1937, 9 Cal.2d 158, 69 P.2d 832, the Supreme Court denied
a hearing in the Seidell case. **The holding in Altman v. McCollum,
supra, 107 Cal.App.2d Supp. 855-856, 236 P.2d 914, is to the effect
that C.C.P. sec. 89, relating to jurisdiction of municipal courts has
expressly conferred upon them power to consider equitable defenses in
suits under C.C.P. sec. 1161a.
As between the parties here, there appears to be a bona fide dispute

whether the property has been duly sold and the title duly perfected.
[9] Title is duly perfected when all steps have been taken to make it
perfect, i.e., to convey to the purchaser that which he has purchased,
valid and good beyond all reasonable doubt. Hocking v. Title Ins. &
Trust Co., 1951, 37 Cal.2d 644, 649, 234 P.2d 625, 40 A.L.R.2d 1238,
which includes good record title ( Gwin v. Calegaris, 1903, 139 Cal.
384, 73 P. 851), but is not limited to good record title, as between
the parties to the transaction. The term ‘duly’ implies that all of
those elements necessary to a valid sale exist, else there would not
be a sale at all. If there is want of performance or want of true
consent the title cannot be said to be perfected. (C.C. secs. 1567-
1589.) The court in an unlawful detainer under C.C.P. sec. 1161a(4)
has jurisdiction to determine the validity of such defenses.
If delivery of the deed violated the instructions, or if they were

altered by plaintiff without defendant's authorization, there was no
sale, and no rights can be derived therefrom by plaintiff. Los Angeles
City H. S. District v. Quinn, 1925, 195 Cal. 377, 383, 234 P. 313;
Sousa v. First California Co., 1950, 101 Cal.App.2d 533, 538-539, 225
P.2d 955; note 48 A.L.R. 405. While one case states that forgery could
not be set up in unlawful detainer proceedings under C.C.P. sec. 1161a
( Higgins v. Coyne, 1946, 75 Cal.App.2d 69, 75, 170 P.2d 25), we
cannot reconcile this with the other cases nor with the code, since
proceedings based upon on a forged deed certainly cannot ‘perfect the
title’. No bona fide purchaser is involved here. A forgery is a
nullity ( Marlenee v. Brown, 1943, 21 Cal.2d 668, 677, 134 P.2d 770);
and so is delivery of a deed pursuant to instructios if they, as
alleged, were altered by the plaintiff and his *842 partner without
any knowledge or authoriation of the defendant.
[10] Quite independently of any ground of rescission, it is alleged

that the defendant cancelled the escrow in which the deed was
impounded on or about September 20, 1957. The deed was recorded
September 26, 1957. Suit herein was filed November 22, 1957. If the
escrow was validly cancelled before a valid delivery of the deed, then
plaintiff cannot claim immediate possession. If the cancellation
operated as a breach of contract, there still would not necessarily
have been a sale. An unlawful detainer proceeding is not a substitute
for an equitable action for specific performance even if it should be
claimed the vendor has breached his contract.
It follows, therefore, that the judgment must be reversed, and the

cause remanded for a new trial.
Kessler v. Bridge, 161 Cal.App.2d Supp. 837, 327 P.2d 241 (Cal.App.Super.,Jun
11, 1958)
**(3) Title is duly perfected when all steps have been taken to make it perfect, i.e., to
convey to the purchaser that which he has purchased, valid and good beyond all reasonable
doubt. (Hocking v. Title Ins. & Trust Co. (1951), 37 Cal.2d 644, 649 [234 P.2d 625, 40
A.L.R.2d 1238]), which includes good record title (Gwin v. Calegaris (1903), 139 Cal. 384 [73
P. 851]), but is not limited to good record title, as between the parties to the transaction.
The term "duly" implies that all of those elements necessary to a valid sale exist, else there
would not be a sale at all. (2b) If there is want of performance or want of true consent the
title cannot be said to be perfected. (Civ. Code, §§ 1567-1589.) The court in an unlawful
detainer under Code of Civil Procedure, section 1161a, subdivision (4), has jurisdiction to
determine the validity of such defenses.
If delivery of the deed violated the instructions, or if they were altered by plaintiff without
defendant's authorization, there was no sale, and no rights can be derived therefrom by
plaintiff. (Los Angeles City H.S. District v. Quinn (1925), 195 Cal. 377, 383 [234 P. 313];
Sousa v. First California Co. (1950), 101 Cal.App.2d 533,; 538-539 [225 P.2d 955]; note, 48
A.L.R. 405.) While one case states that forgery could not be set up in unlawful detainer
proceedings under Code of Civil Procedure, section 1161a (Higgins v. Coyne (1946), 75
Cal.App.2d 69, 75 [170 P.2d 25]), we cannot reconcile this with the other cases nor with the
code, since proceedings based upon a forged deed certainly cannot "perfect the title." No
bona fide purchaser is involved here. A forgery is a nullity (Marlenee v. Brown (1943), 21
Cal.2d 668, 677 [134 P.2d 770]); and so is delivery of a deed pursuant to instructions if they,
as alleged, were altered by the plaintiff and his *842 partner without any knowledge or
authorization of the defendant.
Stephens, Partain & Cunningham v. Hollis, 196 Cal.App.3d 948, 952-

953, 242 Cal.Rptr. 251 (Cal.App. 3 Dist. Dec 04, 1987) citing Kessler
v. Bridge with approval
Good case. Utilize.
(2) “To establish that he is a proper plaintiff, one who has purchased property at a trustee's
sale and seeks to evict the occupant in possession must show that he acquired the property
at a regularly conducted sale and thereafter 'duly perfected' his title. [Citation.]” ( Vella v.
Hudgins (1977) 20 Cal.3d 251, 255 [ 142 Cal.Rptr. 414, 572 P.2d 28]; see Cruce v. Stein
(1956) 146 Cal.App.2d 688, 692 [ 304 P.2d 118]; Kelliher v. Kelliher (1950) 101 Cal.App.2d
226, 232 [ 225 P.2d 554]; Higgins v. Coyne (1946) 75 Cal.App.2d 69, 73 [ 170 P.2d 25];
*953Nineteenth Realty Co. v. Diggs (1933) 134 Cal.App. 278, 288-289 [ 25 P.2d 522].) One
who subsequently purchases property from the party who bought it at a trustee's sale may
bring an action for unlawful detainer under subdivision (b)(3) of section 1161a. ( Evans v.
Superior Court (1977) 67 Cal.App.3d 162, 169 [ 136 Cal.Rptr. 596].) However, the
subsequent purchaser must prove that the statutory requirements have been satisfied, i.e.,
that the sale was conducted in accordance with section 2924 of the Civil Code and that title
under such sale was duly perfected. (Ibid.) “Title is duly perfected when all steps have been
taken to make it perfect, i.e., to convey to the purchaser that which he has purchased, valid
and good beyond all reasonable doubt. ( Hocking v. Title Ins. & Trust Co. (1951), 37 Cal.2d
644, 649 [ 234 P.2d 625, 40 A.L.R.2d 1238]), which includes good record title ( Gwin v.
Calegaris (1903), 139 Cal. 384 [ 73 P. 851]), ...” ( Kessler v. Bridge (1958) 161 Cal.App.2d
Supp. 837, 841 [ 327 P.2d 241].)
To the limited extent provided by subdivision (b)(3) of section 1161a, title to the property
may be litigated in an unlawful detainer proceeding. ( Cheney v. Trauzettel (1937) 9 Cal.2d
158, 159 [ 69 P.2d 832].) While an equitable attack on title is not permitted ( Cheney, supra,
9 Cal.2d at p. 160), **issues of law affecting the validity of the foreclosure sale or of title are
properly litigated. ( Seidell v. Anglo-California Trust Co. (1942) 55 Cal.App.2d 913, 922 [ 132
P.2d 12], approved in Vella v. Hudgins, supra, 20 Cal.3d at p. 256.)
Evans v. Superior Court, 67 Cal.App.3d 162, 169, 136 Cal.Rptr. 596

(Cal.App. 2 Dist.,Feb 15, 1977)
Bad case. Vella overruled Evans in December 1977, and Evans

published on February 1977 that equitable defenses are at issue
insofar as they would if successful preclude the removal of the
tenant. California Supreme Court opinion Vella v. Hudgins 20 Cal.3d
251, 255, 572 P.2d 28, 142 Cal.Rptr. 414 (Cal. Dec 08, 1977) states
that legal or equitable issues are at issue, “cross-complaints and
affirmative defenses, legal or equitable, are permissible only insofar
as they would, if successful, ‘preclude the removal of the tenant from
the premises’”. The instant case is a bad case because facts of the
case are unclear, makes broad general incorrect statement that
equitable issues cannot be raised, determined or tried. Evans is
distinguished by Asuncion and Mehr on the ground of issue of the
acquisition of title by fraud. And Old v. Seibert is distinguished
because the issues did not involve acquisition of title by fraud.
[4] Forcible Entry and Detainer 6(1)

179k6(1) Most Cited Cases
[4] Forcible Entry and Detainer 6(2)

Essence of unlawful detainer statutory action is a right to possession
and action remains summary in character; **however, to limited extent
of proving deraignment of title in manner expressly provided for in
unlawful detainer statutes themselves the question of title not only
may, but must, be tried in such actions. West's Ann.Code Civ.Proc. §
1161.
[5] Mortgages 372(4)

In an action under unlawful detainer statute provision applicable
where property has been sold in accordance with section of the Civil
Code, under a power of sale contained in a deed of trust, title is in
issue to extent that party bringing action must prove that sale was
held in compliance with said section of the Civil Code and that title
under such sale was duly perfected, and adding additional requirement
that a subsequent purchaser from foreclosure sale purchaser prove his
own acquisition of title from said foreclosure sale purchaser no more
destroys summary nature of proceedings than does corresponding
requirement that landlord's successor in estate prove his acquisition
of such interest in proceeding pursuant to unlawful detainer statute.
West's Ann.Code Civ.Proc. §§ 1161a, 1161a, subd. 3; West's
Ann.Civ.Code, § 2924.
At common law the sole issue in an unlawful detainer action was the
right to possession, a tenant being estopped to challenge his
landlord's claim of title. The essence of the statutory action, too,
is a right to possession and remains summary in character; however, '.
. . to the limited extent of proving deraignment of title in the
manner expressly provided for in the unlawful detainer statutes
themselves the question of title not only may, but must, be tried in
such actions **601 . . ..' (Hewitt v. Justice's Court, supra, 131
Cal.App. 439, 443, 21 P.2d 641, 643.) In an action pursuant to section
1161a, subdivision 3, title is in issue to the extent that the
plaintiff must prove that a sale was held in compliance with section
2924 of the Civil Code, and that title under such sale was duly
perfected. (Kartheiser v. Superior Court, 174 Cal.App.2d 617, 345 P.2d
135.)
Kartheiser v. Superior Court In and For Los Angeles County, 174

Cal.App.2d 617, 620, 345 P.2d 135 (Cal.App. 2 Dist. Oct 21, 1959)
(1) Evidence § 69--Judicial Notice--Court Records.

In a mandamus proceeding to compel the superior court to vacate an
order continuing the trial of an unlawful detainer action brought by
the purchaser of property at a trustee's sale against the former
owners in possession, the District Court of Appeal could take judicial
notice of the record in an appeal pending in that court from a
judgment in an action by the former owners of the property to enjoin
the trustee's sale and for a declaration that a tender previously made
by them was sufficient to cure the existing default and prevent a
valid foreclosure sale.
See Cal.Jur.2d, Evidence, §§ 52-54; Am.Jur., Evidence, §§ 86-88.

(2a, 2b) Landlord and Tenant § 284--Unlawful Detainer--Issue of Title.
**Although generally title cannot be tried in an unlawful detainer
action, that rule was not applicable to an unlawful detainer action
brought by the purchaser of property at a trustee's sale against the
former owners in possession where defendants' answer denied
plaintiff's ownership on the ground that the trustee's sale was
invalid.
(3) Landlord and Tenant § 284--Unlawful Detainer--Issue of Title.

Under Code Civ. Proc., § 1161a, subd. 3, providing that one holding
over after notice to quit may be removed where the property has been
“duly sold” in accordance with Civ. Code, § 2924, under a power of
sale contained in a deed of trust executed by him, and the title under
the sale has been “duly perfected,” title, to the extent required by §
1161a, not only may, but must, be tried in unlawful detainer actions
if the provisions of the statute extending the remedy beyond the cases
where the conventional relation of landlord and tenant exists are not
to be judicially nullified.
“(2a) It is argued that that issue is not in the unlawful detainer

action because title cannot be tried in such a summary proceeding.
Conceding that to be the general rule, **it is not applicable where
the validity of the trustee's sale is attacked. If he has not pursued
the terms of the trust deed and the statute the trustee's deed passes
only a vulnerable title. **(3) “In an action for unlawful detainer,
section 1161a therefore necessarily requires proof that the property
was 'duly sold in accordance with Section 2924 of the Civil Code,' and
that 'the title under the sale has been duly perfected.'(Italics
ours.) Under such unlawful detainer statutes it has been held that
title, to the extent required by section 1161a, 'not only may, but
must, be tried in such actions if the provisions of the statutes
extending the remedy beyond the cases where the conventional relation
of landlord and tenant exists are not to be judicially nullified.' ”
(Seidell v. Anglo-California Trust Co., 55 Cal.App.2d 913, 920 [132
P.2d 12].) To same effect, see Hewitt v. Justice's Court, 131 Cal.App.
439, 443 [21 P.2d 641]; *621Mortgage Guarantee Co. v. Smith, 9
Cal.App. 2d 618, 619 [50 P.2d 835]; Freeze v. Salot, 122 Cal.App.2d
561, 564 [266 P.2d 140]; Altman v. McCollum, 107 Cal.App.2d Supp. 847,
856-857 [236 P.2d 914]; Bliss v. Security-First Nat. Bank, 81
Cal.App.2d 50, 58 [183 P.2d 312].”
Code Of Civil Procedure Section 1161a. Sale of manufactured home,
mobilehome, floating home or real property; removal of person holding
over after notice
(3) Where the property has been sold in accordance with Section 2924
of the Civil Code, under a power of sale contained in a deed of trust
executed by such person, or a person under whom such person claims,
and the title under the sale has been duly perfected.
Section 2924, of the Civil Code of the State of California.
“(a) Every transfer of an interest in property, other than in trust,

made only as a security for the performance of another act, is to be
deemed a mortgage, except when in the case of personal property it is
accompanied by actual change of possession, in which case it is to be
deemed a pledge. Where, by a mortgage created after July 27, 1917, of
any estate in real property, other than an estate at will or for
years, less than two, or in any transfer in trust made after July 27,
1917, of a like estate to secure the performance of an obligation, a
power of sale is conferred upon the mortgagee, trustee, or any other
person, to be exercised after a breach of the obligation for which
that mortgage or transfer is a security, the power shall not be
exercised except where the mortgage or transfer is made pursuant to an
order, judgment, or decree of a court of record, or to secure the
payment of bonds or other evidences of indebtedness authorized or
permitted to be issued by the Commissioner of Corporations, or is made
by a public utility subject to the provisions of the Public Utilities
Act, until all of the following apply:
The plain meaning of the statute of C.C. 2924 states that power of
sale is to be exercised “to be exercised after a breach of the
obligation for which that mortgage or transfer is a security”
Miller & Starr California Real Estate Digest 3d

Database updated August 2010
Landlord and Tenant
XIII. Unlawful Detainer
Topic Summary
§ 169. Defenses and crossdemands
A proceeding for unlawful detainer is summary in character, and ordinarily, only claims bearing directly on the right
of immediate possession are cognizable. Also, cross-complaints and affirmative defenses, legal or equitable, are
permissible only insofar as they would, if successful, preclude removal of the tenant from the premises. As a
consequence, a judgment in unlawful detainer usually has very limited res judicata effect and will not prevent one
who is dispossessed from bringing a subsequent action to resolve questions of title or to adjudicate other legal and
equitable claims between the parties. However, to the limited extent provided by Code Civ. Proc., § 1161a, subd. 3,
providing that a person who continues possession of real property may be removed where the property has been duly
sold and the title of the sale has been duly perfected, title may be litigated in such a proceeding. Vella v. Hudgins, 20
Cal. 3d 251, 142 Cal. Rptr. 414, 572 P.2d 28 (1977)
A defense normally permitted because it arises out of the subject matter of the original suit is generally
excluded in an unlawful detainer action if such defense is extrinsic to the narrow issue of possession, which the
unlawful detainer procedure seeks speedily to resolve, but a tenant is not prohibited from interposing a defense
which does directly relate to the issue of possession, and which, if established, would result in the tenant's retention
of the premises. Green v. Superior Court, 10 Cal. 3d 616, 111 Cal. Rptr. 704, 517 P.2d 1168 (1974).
Vella v. Hudgins, 20 Cal.3d 251, 255, 572 P.2d 28, 142 Cal.Rptr. 414
(Cal. Dec 08, 1977)
Good case. Utilize.
*255[1] The history and scope of unlawful detainer actions have been
discussed at length in several recent appellate decisions. (E. g.,
Gonzales v. Gem Properties, Inc. (1974) 37 Cal.App.3d 1029, 1033-1035,
112 Cal.Rptr. 884;Union Oil Co. of Cal. v. Chandler (1970) 4
Cal.App.3d 716, 721-722, 84 Cal.Rptr. 756; cf. Green v. Superior Court
(1974) 10 Cal.3d 616, 631-634, 111 Cal.Rptr. 704, 517 P.2d 1168.) For
our present purpose, it is sufficient to note that the proceeding is
summary in character; **that ordinarily, only claims bearing directly
upon the right of immediate possession are cognizable ( Green, supra,
at pp. 632-634, 111 Cal.Rptr. 704, 517 P.2d 1168;Knowles v. Robinson
(1963) 60 Cal.2d 620, 625, 36 Cal.Rptr. 33, 387 P.2d 833;Cheney v.
Trauzettel (1937) 9 Cal.2d 158, 159, 69 P.2d 832; see Cruce v. Stein
(1956) 146 Cal.App.2d 688, 304 P.2d 118); and that cross-complaints
and affirmative defenses, legal or equitable, are permissible only
insofar as they would, if successful, “preclude the removal of the
tenant from the premises.” ( Green, supra, at p. 634, fn. 19, 111
Cal.Rptr. at p. 716, 517 P.2d at p. 1180;Union Oil Co. of Cal., supra,
4 Cal.App.3d at p. 725, 84 Cal.Rptr. 756.)
And the court stated,”
**A qualified exception to the rule that title cannot be tried in

unlawful detainer is contained in Code of Civil Procedure section
1161a, which extends the summary eviction remedy beyond the
conventional landlord-tenant relationship to include certain
purchasers of property such as Hudgins. Section 1161a provides for a
narrow and sharply focused examination of title. To establish that he
is a proper plaintiff, one who has purchased property at a trustee's
sale and seeks to evict the occupant in possession must show that he
acquired the property at a regularly conducted sale and thereafter
“duly perfected” his title. (s 1161a, subd. 3.) Thus, we have declared
that “to this limited extent, as provided by the statute, . . . title
may be litigated in such a proceeding.” ( Cheney v. Trauzettel, supra,
9 Cal.2d at p. 159, 69 P.2d at p. 833.)
(Vella v. Hudgins, supra, 20 Cal.3d at p. 255)
Cheney v. Trauzettel, 9 Cal.2d 158, 159-160, 69 P.2d 832 (Cal.,Jun

29, 1937)
[1][2] The trial court properly held that in the summary proceeding in
unlawful detainer the right to possession along was involved, and
the**broad question of title could not be raised and litigated by
cross-complaint or affirmative defense. See Arnold v. Krigbaum, 169
Cal. 143, 146 P. 423, Ann.Cas.1916D, 370; Bekins v. Trull, 69 Cal.App.
40, 230 P. 24. It is true that where the purchaser at a trustee's
sale proceeds under section 1161a of the Code of Civil Procedure he
must prove his acquisition of title by purchase at the sale; but it is
only to this limited extent, as provided by the statute, that the
title may be litigated in such a proceeding. Hewitt v. Justice'
Court, 131 Cal.App. 439, 21 P.(2d) 641; Nineteenth Realty Co. v.
Diggs, 134 Cal.App. 278, 25 P.(2d) 522; Berkeley Guarantee Building &
Loan Ass'n v. Cunnyngham, 218 Cal. 714, 24 P.(2d) 782.
[3] *160 In the instant case the cross-complaint is in the usual form
of a complaint to quiet title, under which pleading any question with
respect to the title could be tried. The answer, in substance, sets up
the defense that the sale was merely colorable, in pursuance of an
agreement to effect a transfer of property to preserve it from
execution at the hands of a judgment creditor; and that plaintiffs did
not thereby acquire a valid title. **But compliance with all the
statutory requirements in respect of the conduct of the sale is
admitted, and the only attack on the propriety of the sale procedure
is based upon the provision in the deed of trust calling for payment
in gold coin, which provision is, under the existing federal law,
unenforceable. Irrespective of the merits of the defenses raised by
the answer, the alleged equitable grounds of attack on plaintiff's
title have no place in the present summary proceeding, for, if such
issues are permissible, the proceeding entirely loses its summary
character. In our opinion, the plaintiff need only prove a sale in
compliance with the statute and deed of trust, followed by purchase at
such sale, and the defendant may raise objections only on that phase
of the issue of title. Matters affecting the validity of the trust
deed or primary obligation itself, or other basic defects in the
plaintiff's title, are neither properly raised in this summary
proceeding for possession, nor are they concluded by the judgment.
In Bank of America, N.A. v. La Jolla Group II, 129 Cal.App.4th 706, 712 78
Cal.Rptr.3d 825, the court stated,”
In this case, it is undisputed that the trustor and beneficiary entered into
an agreement to cure the default. It follows that the beneficiary had no right to
sell afterward. Therefore, the foreclosure sale was invalid.
And,
“[2] La Jolla argues that even if the foreclosure constituted a violation by
the beneficiary of the rights of the trustor, the trustee’s deed that La Jolla
received and recorded conveyed unassailable title to it, because it was a bona fide
purchaser. This argument is based on certain statutory presumptions that become
effective when a trustee’s deed containing prescribed recitals is delivered to a
bona fide purchaser.” (Bank of America, N.A. v. La Jolla Group II, supra, 129
Cal.App.4th at p. 713)
And,
“Like the statutory provisions regarding reinstatement, the provisions La
Jolla relies on regarding the rights of a recipient of a trustee’s deed have no
effect on this **830 case. The provisions in question establish presumptions about
the adequacy of notices related to a foreclosure sale:
A recital in the deed executed pursuant to the power of sale of compliance
with all requirements of law regarding the mailing of copies of notices or the
publication of a copy of the notice of default or the personal delivery of the copy
of the notice of *714 default or the posting of copies of the notice of sale or the
publication of a copy thereof shall constitute prima facie evidence of compliance
with these requirements and conclusive evidence thereof in favor of bona fide
purchasers and encumbrancers for value and without notice.”(§2924.)
There is no contention in this case that the foreclosure sale was not
properly noticed. The sale was improper because the loan was current and therefore
the beneficiary had no right to exercise the power of sale. No statute creates a
presumption-conclusive or otherwise-for any purchaser-bona fide or otherwise-that

any recitals in a trustee’s deed render effective a sale that had no contractual
basis.”
(Bank of America, N.A. v. La Jolla Group II, supra, 129 Cal.App.4th at pp. 714-
715)
Harker v. Rickershauser, 94 Cal.App. 755, 271 P. 912 (Cal.App. 3
Dist.,Nov 14, 1928)
Action by Mabel E. Harker against F. J. Rickershauser and another.

Judgment for plaintiff, and defendants appeal. Affirmed.
West Headnotes
[1] Evidence 383(7)
Recitals of trustee's deed that mortgagors had defaulted held not

conclusive against mortgagors' claim that condition rendering trust
deed void had been performed.
[3] Mortgages 101
266k101 Most Cited Cases
Word "or" in deed of trust reciting it should be void on happening of

specified contingencies held not construable as "and."
[7] Ejectment 84(2)
In action for possession, proof that trustee's deed under which

defendants claimed was void, though not pleaded in complaint, held
admissible in avoidance of defense.
This is an action brought to recover possession of 350 acres of land

in Yolo county. The complaint alleges that plaintiff is now, and ever
since the 7th day of February, 1922, has been, the owner thereof; that
defendants, on or about the 8th day of May, 1923, entered into said
land and ousted plaintiff therefrom; and that defendants now
wrongfully withhold possession of said premises. Judgment for
possession is prayed for. The answer denies the ownership by
plaintiff. As a further defense, defendants set up the execution of a
certain deed of trust by plaintiff, covering said property; that a
default occurred on behalf of plaintiff in the performance of certain
condition therein; that a sale of said property under said trust deed
was had; and **913 that defendant F. J. Rickershauser purchased the
same, and that he is now the owner thereof.
The trial court found that said trust deed was null and void, and
judgment was entered for plaintiff, decreeing her to be the owner of
said property, and that she recover possession thereof. From this
judgment defendants appeal.
It appears from the record that in the month of January, 1922,

plaintiff was the owner of certain real property in Los Angeles, which
she agreed to trade with defendants for the 350 acres of land in Yolo
county, above referred to. Pursuant to said agreement, plaintiff
executed and delivered to defendants a deed to her said property, and
defendants conveyed said Yolo county property to plaintiff. The whole
transaction appears to have been consummated by March 1, 1922, on
which date the deed to plaintiff was recorded. During the negotiations
between said parties, it *758 developed that there was outstanding a
judgment against J. B. Harker, husband of plaintiff, in the sum of
$7,200 or thereabouts, and that execution had theretofore been levied
against the interest of said Harker in the Los Angeles property
involved in said trade, said property standing on the records at the
time of said levy in the name of plaintiff. For the purpose of
protecting defendants from the levy of said execution, a trust deed
was executed by plaintiff and her said husband, covering said Yolo
county property, and containing the following provision:
"In the execution, delivery and acceptance of this trust deed it is

expressly understood and agreed between all parties hereto, that if
the parties of the first part pay said judgment or cause the said
execution to be released from said property first herein described,
then the said note and this trust deed to become null and void and of
no effect."
A note for $7,200, due six months after date, was executed in
connection with said trust deed.
Plaintiff introduced in evidence her deed from defendant, testified

that defendants were in possession of the premises described therein,
and rested. Defendants thereupon introduced in evidence the said trust
deed and a deed from the trustee named therein, and given pursuant to
a sale had under the provisions thereof, and rested. Plaintiff, in
rebuttal, then introduced in evidence a certified copy of the release
of the levy of execution above referred to, dated February 27, 1922.
There is also testimony to the effect that the judgment under which
said execution was levied was satisfied September 30, 1922. The facts
above recited with reference to the release of the levy of the
execution were found by the court to be true. The court also found
that said sale under the trust deed was made after defendants knew
that said execution had been released and the judgment under which the
same was levied had been satisfied.
[1] It is first contended by appellants that the trustee's deed and

the recitals therein were a conclusive and complete defense to the
action, and "that said deed and its recitals in this action could not
be attacked, qualified or disproved by plaintiff." The trust deed
contained the following provision:
*759 "And in the event of the sale of said property, or any part
thereof, and the execution of a deed or deeds therefor under these
trusts, then the recitals therein of default, that the beneficiary or
holder of the note had given notice of the default and election to
sell the described premises under the powers of the deed of trust, to
satisfy the debt, was duly recorded in the office of the county
recorder for three months prior to the notice of sale, due
publication of the notice of sale, due and proper posting of the
notice of sale, and also publication of notice of postponement, if
the sale was postponed; that the sale was made to the highest bidder;
that the purchase-money was paid; and any such deed or deeds with
such recitals shall be effectual and conclusive, as against the said
parties of the first part, their heirs or assigns, and all other
persons; and the recital of the receipt of the purchase-money
contained in any deed executed to the purchaser, as aforesaid, shall
be a sufficient discharge to such purchaser from any obligation to
see to the proper application of the purchase-money, according to the
trusts provided in this instrument."
The deed of the trustee contained recitals of all the facts referred
to in the foregoing provision.
And the court stated,
*********
"In the execution, delivery and acceptance of this trust deed it is

expressly understood and agreed between all parties hereto, that if
the parties of the first part pay said judgment or cause said
execution to be released from said property first herein described,
then the said note and this trust deed to become null and void, but
if said first parties fail to pay said judgment or cause the release
of said execution within six months from date hereof, then third
party assumes and agrees to pay said judgment, or so much thereof
*761 as at said time remains due and unpaid, on or before one year
thereafter.
"The payment of said judgment by third party shall not be a
prerequisite to the foreclosing of this trust deed."
The trustee's deed does not refer in any manner or particular to the
last-mentioned provisions. It recites that "there has been a default
in the payment of money advanced in accordance with the provisions of
said trust deed." The whole intent and purpose of executing said trust
deed was, as both parties admit, to secure the payment of the judgment
or the release of the execution levied pursuant thereto. It was given
as security for the performance of either of said acts by the first
party named therein, and upon such performance it is expressly
provided that the instrument shall "become null and void."
As there were clearly no recitals contained in the trustee's deed

with reference to the said judgment and execution, there is little or
no force in the contention made by appellants. Even assuming that such
recitals could be established by inference, they would not be
conclusive in an action between the parties to the trust deed.
[2] A trustee under a deed of trust is the common agent of both

parties (Ainsa v. Mercantile T. Co., 174 Cal. 504, 163 P. 898), and
the theory upon which the courts have proceeded in construing recitals
in trustee's deeds is that the grantor under the trust deed is bound
by the delegation of such authority as is given to the trustee in the
exercise of his trust. This includes the execution of a deed pursuant
to a sale, and the inclusion in said deed of such recitals as the
parties may agree upon, and may include a clause relative to the
conclusiveness of such recitals as to truth of the facts stated
therein. Such recitals are conclusive where an innocent third party is
the grantee in the trustee's deed (Jose Realty Co. v. Pavlicevich, 164
Cal. 613, 130 P. 15), but they are not conclusive as between the
parties to the trust deed. (Seccombe v. Roe, 22 Cal. App. 139, 133 P.
507). In the instant case the trust deed was given as security for the
performance of either of two acts upon the part of the trustor. It is
admitted by both parties that one of said acts, to wit, the release of
the levy of execution, was performed sixteen days from the date of the
said trust deed, and the court found, upon sufficient evidence, that
the beneficiary knew of the *762 performance at or about the date it
took place. If, notwithstanding such knowledge, defendant proceeded to
have a sale made of the premises under such trust deed, this was
palpable fraud upon the trustor, and under such circumstances
plaintiff was entitled to go behind the recitals of the trustee's deed
and prove the facts, even though they might be inconsistent or
contradictory to such recitals. Jose Realty Co. v. Pavlicevich, supra.
The court did not err in permitting plaintiff to prove these facts.
A number of cases have been cited by appellant upon the question of
the conclusiveness of the recitals in the trustee's deed. None of
these referred to construed a provision that upon the performance of a
certain act by the trustor the trust deed shall become null and void.
In the cases cited, the trustee's deeds were, at the most, merely
voidable in an action between the parties. Hence they would pass
title, though subject to direct attack by one of the parties. This is
clearly set forth in Seccombe v. Roe, 22 Cal. App. 139, 133 P. 507.
The case of Jose Realty Co. v. Pavlicevich, supra, involves facts
similar to the case under consideration. The complaint was an ordinary
one to quiet title. The defendant set up a deed to himself from a
trustee and executed in pursuance of a sale had under a trust deed.
Fraud was not pleaded, but the Supreme Court held that plaintiff was
permitted to introduce evidence upon the question as to whether there
had been a default under the trust deed, if such proof established
fraud.
Appellants contend that this action is one brought to recover

possession merely, and is in the nature of ejectment, and that under
such circumstances the recitals in the trustee's deed are conclusive,
citing Seccombe v. **915 Roe, supra, and other cases. What was said by
the court in the case last mentioned on this question was quoted from
Mersfelder v. Spring, 139 Cal. 593, 73 P. 452, where plaintiff sued in
ejectment and defendant appeared with a general denial. Plaintiff
relied upon a deed executed by a trustee under a deed of trust. This
deed contained recitals similar to these in question, and the court
held that the deed passed the legal title and plaintiff had made out a
case in ejectment. The court proceeded to add, however, that these
recitals did not preclude the inquiry, in an equitable proceeding,
into the fairness *763 of the sale or other matters which on equity
principles might entitle the injured party to relief.
[3] It is next urged by appellants that the clause found in the trust
deed in question "that if the parties of the first part pay said
judgment or cause said execution to be released from said property
first described herein, then the said note and this trust deed become
null and void," is to be so construed that the word "or" is to be read
as "and." Usually, the copulative "or" implies an alternative, and in
the instant case, should either of the contingencies occur, the note
and trust deed become null and void. The rule which should guide the
court in this connection is clearly set forth in 2 C. J. 1388, subd.
2, and is as follows:
"Ordinarily these words are in no sense interchangeable terms, but,

on the contrary, are used in the structure of language for purposes
entirely variant. In order to effectuate the intention of the parties
to an instrument, a testator, or a Legislature, as the case may be,
the word 'and' is sometimes construed to mean 'or.' This
construction, however, is never resorted to except for strong reasons
and the words should never be so construed unless the context favors
the conversion."
[4][5] The question is primarily one of ascertaining the intention of

the parties. The substitution of one of these words for the other is,
in effect, affording relief upon the ground of mistake. In this case
we cannot say that there was any mistake in the use of the word "or"
as it appears in the instrument. On the contrary, the preamble to the
trust deed indicates clearly that the release of the execution was of
far more importance than the payment of the judgment. If the payment
of the judgment was the prime and only consideration, why was mention
made of the release of the execution, when it is elemental that the
payment of the judgment would operate, ipso facto, to release the levy
of the execution? In the matter of altering or modifying, by rules of
construction, the solemn engagements of parties, our courts uniformly
have acted with reluctance and hesitation, and it is only where, if
the precise language were allowed to stand, it would set at naught the
obvious intention of the parties, have they substituted, by
construction, one word for another. See *764City of Corona v. Merriam,
20 Cal. App. 232, 128 P. 769; Robinson v. S. P. Co., 105 Cal. 526, 38
P. 94, 722, 28 L. R. A. 773.
[6] Appellants contend that they are entitled to reimbursement for

money they have expended in connection with the property in Yolo
county. This was done, they claim, under the provisions of the trust
deed. The court found that these expenditures were made subsequent to
February 27, 1922, the date when the Los Angeles property was released
from the levy of the execution, and at a time when defendants knew of
said release. The findings of the court, which are sustained by ample
evidence, are as follows:
"That it is true that defendant F. J. Rickershauser paid moneys due

on taxes and also moneys due under said agreement made by him with
adjoining landowners, for alleged reclamation purposes, and also paid
money to make said land productive; that each and every one of said
payments so made by defendant F. J. Rickershauser were made by him
without the consent, knowledge or authority of plaintiff or of her
husband, J. B. Harker; and all of which payments were made subsequent
to the 2nd day of March, 1922, and after the trust deed above set out
had become null and void and of no force or effect; that it is true
that defendant F. J. Rickershauser did not receive back any of the
moneys so paid out by him directly from plaintiff or from J. B.
Harker, but it is true that he did receive certain moneys as rent for
said property, which said moneys he never paid, nor offered to pay to
plaintiff."
It also appears that the rental from said Yolo county property,
subsequent to the date last mentioned, and up to the date of the
trial, was used to defray a considerable part of this expense. The
release of the execution was placed on record in the office of the
recorder of Los Angeles county on said date, and thereafter, as
expressly provided in the trust deed, said instrument was null and
void. If defendants made expenditures purporting to be authorized by
said trust deed, they must be held to be voluntary in character, and
not recoverable. 30 Cyc. 1298-A. It will be observed that the answer
does not contain any specific prayer for relief in respect to this
matter, nor is there any defense or counterclaim based upon such
expenditures.
[7] In the instant case, plaintiff, in making out her case, rightly
ignored the trust deed, and simply proved the deed *765 to her from
defendants. The trust deed was void, and had been from and after
February 27, 1922, and a trustee's deed thereunder passed no title
whatever.
(Harker v. Rickershauser, supra, 94 Cal.App. at p. 760-765)
Kachlon v. Markowitz, 168 Cal.App.4th 316, 334-335, 85 Cal.Rptr.3d

532, 08 Cal. Daily Op. Serv. 14,136, 2008 Daily Journal D.A.R. 17,005
(Cal.App. 2 Dist., Nov 17, 2008)
a. Deeds of Trust, Nonjudicial Foreclosure, and the Duties of a

Trustee
[4][5] Under a deed of trust containing a power of sale, like the

trust deed securing the Markowitzes' promissory note in favor of the
Kachlons, the borrower, or “trustor,” conveys nominal title to
property to an intermediary, the “trustee,” who holds that title as
security for repayment of the loan to the lender, or “beneficiary.”
(See 1 Cal. Real Estate Finance Practice: **546 Strategies and Forms
(Cont.Ed.Bar 2007) §§ 4.3-4.6, pp. 196-199; 4 Miller & Starr, Cal.
Real Estate (3d ed.2000) § 10:2, p. 15.) The trustee's duties are
twofold: (1) to “reconvey” the deed of trust to the trustor upon
satisfaction of the debt owed to the beneficiary, resulting in a
release of the lien created by the deed of trust, or (2) to initiate
nonjudicial foreclosure on the property upon the trustor's default,
resulting in a sale of the property. (Vournas v. Fidelity Nat. Tit.
Ins. Co. (1999) 73 Cal.App.4th 668, 677, 86 Cal.Rptr.2d
490 (Vournas ); see 4 Miller & Starr, supra, at § 10:4, p. 23, §
10:111, p. 340.) The beneficiary may make a substitution of trustee,
such as was done by the Kachlons in substituting Best Alliance, to
conduct the foreclosure and sale. (§ 2934a; see 1 Bernhardt, Cal.
Mortgage and Deed of Trust Practice (Cont.Ed.Bar 2007) § 2:13, p. 65.)
[6] When the trustor defaults on the debt secured by the deed of
trust, the beneficiary may declare a default and make a demand on the
trustee to commence foreclosure. (4 Miller & Starr, supra, § 10:181,
p. 552.) The Civil Code contains a comprehensive statutory scheme
regulating nonjudicial foreclosure. Generally speaking, the statutory,
nonjudicial foreclosure procedure begins with the recording of a
notice of default by the trustee. (§ 2924, subd. (a)(1).) FN8 After
the expiration of not less than three months, the trustee must
publish, post, and mail a notice of sale at least 20 days before the
sale, *335 and must also record the notice of sale at least 14 days
before the sale (§§ 2924, subds. (a)(1), (a)(2) & (a)(3), 2924f, subd.
(b)(1); see Moeller v. Lien (1994) 25 Cal.App.4th 822, 830, 30
Cal.Rptr.2d 777 (Moeller ); see also 4 Miller & Starr, supra, §
10:199, p. 623.) The sale and any postponement are governed by section
2924g. (Moeller, supra, 25 Cal.App.4th at p. 830, 30 Cal.Rptr.2d
777; Miller & Starr, supra, § 10:201, p. 637.)
FN8. In 2006, Civil Code section 2924 was amended by, inter alia,
incorporating subdivisions. Our case is governed by a prior
version of the statute. As here relevant, however, the 2006
amendment contained no substantive change. We cite to the current
statute in discussing nonjudicial foreclosure generally.
[7][8] The trustee in nonjudicial foreclosure is not a true trustee

with fiduciary duties, but rather a common agent for the trustor and
beneficiary. (Vournas, supra, 73 Cal.App.4th at p. 677, 86 Cal.Rptr.2d
490.) The scope and nature of the trustee's duties are exclusively
defined by the deed of trust and the governing statutes. No other
common law duties exist. (I.E. Associates v. Safeco Title Ins. Co.
(1985) 39 Cal.3d 281, 287-288, 216 Cal.Rptr. 438, 702 P.2d
596 (I.E.Associates ); Residential Capital v. Cal-Western
Reconveyance Corp. (2003) 108 Cal.App.4th 807, 827, 134 Cal.Rptr.2d
162.)
Bliss v. Security-First Nat. Bank of Los Angeles, 81 Cal.App.2d 50,

183 P.2d 312 (Cal.App. 2 Dist. Jul 28, 1947)
Case with positive outcome.
Saterstrom v. Glick Bros. Sash, Door & Mill Co., 118 Cal.App. 379, 5 P.2d 21 (Cal.App. 3 Dist.,Nov 17,
1931)
Action by K. Otto Saterstrom and another against the Glick Brothers Sash, Door & Mill Company, H. R. Coburn,
doing business under the name and style of H. R. Coburn Lumber Company, and others. Judgment for plaintiffs, and
defendant last named appeals.
Reversed.
[1] Mortgages 266 48(1)
266 Mortgages
266I Requisites and Validity
266I(B) Form and Contents of Instruments
266k48 Description of Property
Deed of trust failing to name county in which property was situated held void because of defective and insufficient
description.
[2] Deeds 120 38(1)
120 Deeds
120k38 Certainty in General
Deed must contain such description as will enable property to be readily located by reference thereto.
[3] Deeds 120 40
120 Deeds
120k40 k. Reference to Maps or Plats. Most Cited Cases
Parties to deed may describe property by reference therein to a map which, however, when taken together must be
certain in respect to description.
[3] Deeds 120 41
120 Deeds
120k41 k. Reference to Other Instruments or Records. Most Cited Cases
Parties to deed may describe property by reference therein to another deed which, however, when taken together
must be certain in respect to description.
[6] Mortgages 266 48(1)

266 Mortgages
Sale and all proceedings under deed of trust void for lack of sufficient description of property were likewise void.
[7] Mortgages 266 354
266 Mortgages
266IX Foreclosure by Exercise of Power of Sale
266k352 Notice of Sale
266k354 k. Form and Requisites. Most Cited Cases
Notice of sale under deed of trust held fatally defective for failure to contain description of property intended to be
sold. Civ.Code, § 2924.
Action to quiet title to real property. Plaintiffs prevailed in the superior court and defendant H. R. Coburn alone
appeals.
Appellant contends that the evidence is insufficient to support the finding of the trial court “that the above named
plaintiffs, K. Otto Saterstrom and Anna O. Saterstrom, are the owners of the fee simple title to the property
described in paragraph 3 of plaintiffs' complaint,” etc.
Plaintiffs relied wholly upon a record title. Their record title is based upon a sale of the property under a deed of
trust. The deed of trust is dated September 1, 1927, executed by Claud Williams and Mary Williams to the Security
Title Company, a corporation, and purporting to convey property described as follows:
“All that property in the County of ______, State of California, described as:
“Lot thirty nine (39) of Tract number Forty-five hundred eleven (4511) as per map recorded in Book 49, pages 4, 5,
6 and 7 of Maps, in the office of the County Recorder of said County.”
[1] Appellant contends that the deed of trust is void because of the defective and insufficient description of the
property therein set forth. We think this contention must be sustained.
[2] The rule is well established, as stated by this court in Scott v. Woodworth, 34 Cal. App. 400, 167 P. 543, 546:
**“To be valid on its face, a deed must contain such a description of the real property thereby intended to be
conveyed as will enable the property to be readily located by reference to the description.” It was further declared
*381 therein that if the writing itself does “not furnish the means whereby the description may be made sufficiently
definite and certain readily to locate the property, then the instrument must be held void, since the imperfections of
the description cannot be supplied through evidence extrinsic to the writing itself without running up against the
positive mandate of the rule that a conveyance of real property must be in writing.” See, also, Redemeyer v.
Cunningham, 61 Cal. App. 424, 215 P. 83.
[3] The rule is also well established that the parties to a deed may describe the property therein conveyed by a
reference therein to another deed or map which contains a description, yet the deed and instrument referred to, when
taken together, must be as certain in respect to the description, as a description contained in the deed itself. Donnelly
v. Tregaskis, 154 Cal. 261, 97 P. 421; Caldwell v. Center, 30 Cal. 539, 89 Am. Dec. 131; Redemeyer v.
Cunningham, supra; Scott v. Woodworth, supra. See, also, Oatman v. Niemeyer (Cal. Sup.) 273 P. 567. **Tested by
these rules, the conclusion is irresistible that the description above set forth is fatally defective and wholly
insufficient to identify the real property intended to be conveyed by said deed of trust. This being true, the purported
deed of trust was wholly inoperative and void.
By examining the deed of trust, it will be readily perceived that, in describing the property, the name of the city and
county in which the property is located has been left blank. The deed of trust gives no information as to where the
property is located, except that it is in the state of California. Neither is there any deed or map mentioned or referred
to therein, from which it can be ascertained in which city and county the property is situated. It is true the
description refers to “map recorded in Book 49, pages 4, 5, & 6 of Maps, in the office of the County Recorder of
said County.” But it does not say what county. There are fifty-eight counties in California, each one of which
undoubtedly has maps of tracks and subdivisions, etc., similar to the one referred to in the description in question.
**[6] The deed of trust being void for lack of a sufficient description of the property conveyed, the sale and all
proceedings under the deed of trust would likewise be wholly ineffective and void.
[7] The notice given under section 2924 of the Civil Code is fatally defective because it contains no description of
the property intended to be sold, but only refers to the record of said deed of trust for the description of the
property.
§ 2932. Power of sale

A power of sale may be conferred by a mortgage upon the mortgagee or
any other person, to be exercised after a breach of the obligation for
which the mortgage is a security.
Real-estate mortgage executed by one of joint tenants as enforceable
after his death. 67 ALR2d 999.
Decisions Under Current CC § 2932 1. Generally
Where the main obligation was barred by the statute of limitations
and the lien of the mortgage thereby extinguished, the mortgagee as
holder of the power of sale was without any interest in the land as
lien holder, or at all, and the interest, once coupled with it, had
ceased to exist; hence the power of sale was a naked power which
terminated with the extinction of the interest. Goldwater v. Hibernia
Sav. & Loan Soc. (1912, Cal App) 19 Cal App 511, 126 P 861, 1912 Cal
App LEXIS 1.
A power of sale contained in a mortgage is to be deemed a part of
the security; it is a mere incident or appurtenance of the mortgage
lien, agreed upon by the parties solely as a means of enforcing such
lien, and can have no vitality or force when the lien itself no longer
exists. Faxon v. All Persons (1913) 166 Cal 707, 137 P 919, 1913 Cal
LEXIS 374.
5. Validity and Effect of Sale

A power of sale given in a chattel mortgage or independent
instrument must be exercised in accordance with the provisions thereof
and as provided by law, and if not so exercised the sale is void and
results in the extinguishment of the mortgage lien. Elmore Jameson Co.
v. Smith (1939, Cal App) 34 Cal App 2d 609, 93 P2d 1063, 1939 Cal App
LEXIS 151.
Meaning of focused related to the issue of possession means that if

litigated would keep the defendant in possession.

Unlawful Detainer CCP 1161a Foreclosure Sale Ud Issues of Title General Equitable Considerations

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Unlawful detainer, Code Of Civil Procedure Section 1161a foreclosure

sale unlawful detainers and issues of title; general equitable

Cheney raises the issue of the definition of directly relates to the

California Practice Guide: Landlord-Tenant

Chapter 8. Unlawful Detainer Litigation: Pretrial Matters

**l. [8:351] Equitable defenses

l. [8:351] Equitable defenses: Generally, any defense on equitable

c) [8:356] Landlord's fraud: The landlord acquired the right

January 15, 1974.

(5) Landlord and Tenant § 283(1)--Unlawful Detainer--Defenses and Cross-demands.

In Schweiger, following the lead of Abstract Investment, we upheld a tenant's defense to an

ACTION AGAINST TENANT FOR HOLDING OVER.

The other facts are stated in the opinion.

B. S. Brooks, for Appellant.

*301 Edward J. Pringle, for Respondent.

At the trial the plaintiffs put in evidence the following agreement:

**Judgment reversed, and cause remanded for a new trial.

Mortgages 266 301

H. V. Morehouse and J. E. Alexander, for respondents.

The judgment appealed from is therefore affirmed.

[1] Forcible Entry and Detainer 179 25(1)

179 Forcible Entry and Detainer

The judgment is affirmed.

Kessler v. Bridge, 161 Cal.App.2d Supp. 837, 327 P.2d 241

Good case. Utilize.

Reversed and remanded.

[1] Forcible Entry and Detainer 179 29(4)

179I Civil Liability

179k29(4) k. Weight and Sufficiency. Most Cited Cases

[2] Forcible Entry and Detainer 179 6(2)

179 Forcible Entry and Detainer

179I Civil Liability

179k6 Nature and Form of Remedy

179k6(2) k. Trial of Title and Right of Possession.

Under statute authorizing removal of a person who holds over and

[3] Forcible Entry and Detainer 179 12(1)

179 Forcible Entry and Detainer

179I Civil Liability

179k12(1) k. In General. Most Cited Cases

In proceeding for removal of vendor from premises and for an award of

[6] Landlord and Tenant 233 290(1)

233 Landlord and Tenant

233IX Re-Entry and Recovery of Possession by Landlord

233k287 Actions for Unlawful Detainer

233k290 Right of Action and Defenses

233k290(1) k. Existence of Relation of Landlord

Where landlord-tenant relationship is shown to exist between plaintiff

[7] Forcible Entry and Detainer 179 29(2)

179 Forcible Entry and Detainer

179I Civil Liability

179k29(2) k. Admissibility in General. Most Cited

It is competent to show in an unlawful detainer proceedings that

[9] Forcible Entry and Detainer 179 8

179 Forcible Entry and Detainer

179I Civil Liability

179k8 k. Title to Support Action. Most Cited Cases

Under statute providing for removal of person who continues in

[1][2] Plaintiff secured judgment against defendant vendor of certain

[3] Based upon decisions pertaining to landlord-tenant relationships,

Summarized, defendant's defenses are, substantially, **(1) fraud in

In a case such as this it is essential that such issues be litigated,

If grounds for rescission existed, and proper notice of rescission